1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.07.2011 CORAM: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.R.P.(NPD)(MD)No.1209 of 2011 and M.P(MD)No.1 of 2011 1.Thirumalaisamy 2.Ponraj 3.Sarasthal ..Petitioners -vs- Valliyathal ..Respondent PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the order passed in I.A.No.686 of 2010 in O.S.No.173 of 2009 on the file of the District Munsif, Ottanchatram, dated 11.03.2011. For Petitioners : Mr.C.K.M.Appaji. O R D E R The defendants are before this Court challenging the order passed in the application for amendment filed by the respondent/plaintiff. 2.Heard Mr.C.K.M.Appaji, learned counsel for the petitioners. 3.Originally, the suit has been field by the respondent/plaintiff for permanent injunction. An Advocate Commissioner was appointed to note down the physical feature of the property. In the Advocate Commissioner's report, it has been mentioned that the petitioners/defendants encroached upon the southern side portion of the suit property. Therefore, the respondent/plaintiff filed an amendment application seeking mandatory injunction and that application was allowed. Challenging the same, the defendants are before this Court. 4.The learned counsel for the petitioners submits that there is no cause of action pleaded in the plaint for mandatory injunction. Secondly, there is no averment in the application that the petitioners try to encroach upon the property. Thirdly, if at all the respondent is aggrieved only he has to go for separate suit. Admittedly, in the Advocate Commissioner's report, it has been categorically stated that the petitioners encroached upon the suit property on the southern side. When it is reflected in the Advocate Commissioner's report about the encroachment made by the petitioners, necessarily, the respondent/plaintiff has to seek amendment for mandatory injunction and that was rightly done by the respondent/plaintiff. There cannot be any pleadings regarding cause of action about mandatory injunction as original suit was only for permanent injunction and the encroachment was alleged to have been made only during the pendency of the suit. Though the learned counsel for the petitioners submits that the respondent did not give the details about the date on https://hcservices.ecourts.gov.in/hcservices/ 2 which the petitioners encroached upon the property, it should be urged in the trial and not at the stage of amendment. Moreover, merits can not be gone into in the amendment application. 5.As far as filing of fresh suit for mandatory injunction is concerned, it cannot be accepted as it has been held by the Hon'ble Supreme Court that when the party has got a right to file a separate suit, there is no prohibition for the party to seek for amendment of the prayer in the pending suit between the same parties. If the parties is driven to file a new suit it will only lead to multiplicity of proceeding. As the petitioners alleged to have encroached upon the property during pendency of the case, the trial Court rightly allowed the amendment application. The reasons given by the trial Court is valid and cannot be interfered with. Therefore, the Civil Revision Petition fails and same is dismissed. Consequently, connected miscellaneous petition is closed. No costs. SD ASST REGISTRAR(crl.side) /TRUE COPY/ SUB ASST REGISTRAR skn To 1.The District Munsif, Ottanchatram, 1cc to Mr.C.K.M.Appaji, Advocate SR No.21273/11 SB:28/11/2011 2p 3c C.R.P.(PD)(MD)No.1209 of 2011 https://hcservices.ecourts.gov.in/hcservices/