1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.11.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.553 of 2011 and (NPD) MISCELLANEOUS PETITION No.1 of 2011 1.T.Baby Vasantha 2.T.Babitha 3.T.Kabila 4.T.Deepika 5.T.Balaji Sanker .. Petitioners Vs. K.Santhi .. Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 21.10.2010 passed in Interlocutory Application No.54 of 2010 in Original Suit No.132 of 2006 by the District Munsif Court, Kovilpatti. For Petitioners : Mr.B.Rajesh Saravanan For Respondent : Mr.M.P.Senthil ORDER The order dated 21.10.2010 passed in Interlocutory Application No.54 of 2010 in Original Suit No.132 of 2006 by the District Munsif Court, Kovilpatti is being challenged in the present Civil Revision Petition. 2. The revision petitioners herein as plaintiffs have instituted Original Suit No.132 of 2006 on the file of the Court below for getting a decree of perpetual injunction, wherein the present respondent has been shown as sole defendant. During pendency of the same, the present petition has been filed in Interlocutory Application No.54 of 2010 under Order VI, Rule 17 of the Code of Civil Procedure, 1908 praying to permit the petitioners/plaintiffs to make amendments in the plaint as set out in the petition. The Court below after considering all the contentions putforth on either side has dismissed Interlocutory Application No.54 of 2010. Against the dismissal order, the present Civil Revision Petition has been filed. 3. The learned counsel appearing for the revision petitioners/petitioners/plaintiffs has contended that Original Suit No.132 of 2006 has been instituted for the relief of permanent injunction and during pendency of the same, the respondent/defendant has encroached a portion of the suit property, which has been shown as second schedule https://hcservices.ecourts.gov.in/hcservices/ 2 in the amendment petition and the Court below without considering the averments made in Interlocutory Application No.54 of 2010 has erroneously dismissed the same, simply on the ground that the revision petitioners/petitioners/ plaintiffs are not having title to the alleged encroached portion and therefore the reasoning given by the Court below for dismissing Interlocutory Application No.54 of 2010 is not correct and altogether the order passed in Interlocutory Application No.54 of 2010 is liable to be set aside. 4. The learned counsel appearing for the respondent/defendant has contended that in Original Suit No.132 of 2006, a detailed written statement has been filed and the Advocate Commissioner has also filed his report and plan after visiting the suit property in the year 2008, wherein it has been clearly stated about the alleged encroachment of six feet and the revision petitioners/petitioners/plaintiffs have not taken proper steps and therefore the dismissal order passed by the Court below is perfectly correct and the same does not require any interference. 5. As stated earlier, Original Suit No.132 of 2006 has been instituted for getting a decree of perpetual injunction. The present petition has been filed under Order VI, Rule 17 of the Code of Civil Procedure, 1908. In fact, this Court has perused the entire averments made in the present petition, wherein it has been specifically stated that only during pendency of the present suit, the alleged encroachment has been made and put up construction by the respondent/ defendant. Only on the basis of alleged encroachment, the amendments mentioned in the present petition have been sought for. 6. The Court below has dismissed Interlocutory Application No.54 of 2010 simply on the ground that the petitioners/plaintiffs are not having title to the alleged encroached portion. The fact as to whether the petitioners/ plaintiffs are having title to the encroached portion or the respondent/defendant is having title to the same can be decided only in Original Suit No.132 of 2006. Therefore the reasoning given by the Court below for dismissing Interlocutory Application No.54 of 2010 is totally incorrect. 7. It has already been pointed out that Interlocutory Application No.54 of 2010 has been filed under Order VI, Rule 17 of the Code of Civil Procedure, 1908, wherein it has been explicitly stated that during pendency of Original Suit No.132 of 2006, the respondent/ defendant has encroached a portion of the suit property, which has been shown as second schedule. Considering the fact that the alleged encroachment has takenplace only during pendency of the suit and also considering that Original Suit No.132 of 2006 has been instituted for the relief of perpetual injunction and the relief of mandatory injunction has been sought for in Interlocutory Application No.54 of 2010. For the purpose of giving quietus to the parties, the relief sought for in Interlocutory Application No.54 of 2010 can very well be granted and therefore the order passed by the Court below is liable to be set aside. 8. In fine, this Civil Revision Petition is allowed without costs and the order passed in Interlocutory Application No.54 of 2010 in Original Suit No.132 of 2006 by the District Munsif Court, Kovilpatti is set aside and the petition filed in Interlocutory Application No.54 of https://hcservices.ecourts.gov.in/hcservices/ 3 2010 in Original Suit No.132 of 2006 is allowed. However, the revision petitioners/ petitioners/plaintiffs are directed to pay Rs.2,000/- to the respondent/defendant by way of cost before the end of December, 2011 and to that effect a memo has to be filed in Original Suit No.132 of 2006. The respondent/defendant is at liberty to file additional written statement. The District Munsif Court, Kovilpatti is directed to dispose of Original Suit No.132 of 2006 before the end of February, 2012 and report the same to the Registry without fail. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar To The District Munsif Court, Kovilpatti. Copy to The Section Officer, Judicial Department, Madurai Bench of Madras High Court, Madurai +1cc to Mr.B.Rajesh Saravanan, Advocate, SR.No.37421 +1cc to Mr.M.P.Senthil, Advocate, SR.No.37503 smn GH : 10.11.2011 : 3p/4c C.R.P(NPD)(MD)No.553 of 2011 and M.P(MD)No.1 of 2011 01.11.2011 https://hcservices.ecourts.gov.in/hcservices/