1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:28.03.2011 CORAM: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.R.P(PD)(MD)No.615 of 2011 and M.P(MD)NO.1 of 2011 1.Lizi 2.Christi Bai 3.Dary Bai 4.Gladis Nesabai .. Petitioners / Plaintiffs -vs- 1.J.Justin sundarlalbabu 2.Christhu Dhas 3.Christal Premakumari 4.The Executive Officer, Kothanallur Town Panchayat, Panchayat Office, Kothanallur Village, Kalkulam Taluk, Kanyakumari District. 5.The State of Tamil Nadu, Represented by the District Collector, Kanyakumari District. .. Respondents/Defendants PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.1293 of 2010 in O.S.No.171 of 2007, on the file of the learned Principal District Munsif Court, Padmanabhapuram dated 24.01.2011 by allowing the Civil Revision Petition. For Petitioners : Mr.C.Mayil Vahana Rajendran *** ORDER The plaintiffs are the petitioners before this Court, who is aggrieved with regard to the dismissal of the amendment application filed by them. 2. The petitioners filed a suit for declaration and for permanent injunction. The suit property measures about 27 cents. The case of the petitioners is that 27 cents was obtained by way of a partition deed. However, during Re-survey, the extent of the property has been wrongly mentioned as 25 cents comprised in Survey No.268/5, whereas, the petitioners are in possession of 27 cents. Therefore, to correct the said mistake, the petitioners have filed the amendment application seeking to include 1.500 cents, which has been shown as poramboke land in Re-survey No.268/4. 3. The learned counsel for the petitioner submitted that the petitioner came to know about the discrepancy only when P.W.1 was cross- examined on 10.06.2010. The trial Court observed that if there was https://hcservices.ecourts.gov.in/hcservices/ 2 mistake during Re-survey, the petitioner could have stated so in 2007 itself, when the suit was filed and therefore, the trial Court dismissed the said application. The trial Court also took note of the fact that the defendant was not cross-examined with regard to 1.500 cents also, which is sought to be included. 4. The trial Court reasoned that the petitioner/P.W.1 was aware of the discrepancy when he was cross-examined and the plaintiffs did not take steps to correct the mistake and only when the matter was posted for defendants side evidence, the application has been filed. Relying upon the Judgment of this Court in 2010 (1) MWN (Civil) 393 reported in Rajamani Vs. Kumarasamy and 3 others and 2011 (1) MLJ 491, which held that there could not be any amendment application after commencement of the trial unless there is justifiable reason for not filing the application before the commencement of the trial, the amendment application cannot be allowed. 5. A perusal of the written statement filed by the first respondent would show that in paragraph No.2 of the written statement, the defendants specifically stated that the petitioners with an intention to encroach upon the portion of the land comprised in Re-survey No.268/4 (poramboke pathway) along with their property to an extent of 22 cents comprised in Survey No.268/5,the suit has been filed. When such a specific plea has been made, the petitioners should have taken steps to amend the plaint. 6. That apart, Re-survey was done long before the filing of the suit. If the plaintiffs are aggrieved with regard to wrong description of the said property as a promboke land, the petitioners/plaintiffs could have pointed out the discrepancy, while filing the suit itself. Therefore, there was negligence on the part of the plaintiffs in spite of categorical defence taken in the written statement. Re-survey was as stated above was done much before filing of the suit. Therefore, the trial Court has rightly dismissed the amendment application. 7. In view of the same, the order of the trial Court is sustained and the Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs. SD/- Assistant Registrar (P&A) /True copy/ Sub Assistant Registrar To The Principal District Munsif , Padmanabhapuram. +1 CC TO MR. C. MAYILVAHANARAJENDRAN, ADVOCATE S.R NO. 8378 CRP(PD)(MD)No.615 of 2011 28.03.2011 ps PAM 20.04.2011/3C/2P https://hcservices.ecourts.gov.in/hcservices/