THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.3273 of 2009 Dated:17.08.2009 Between: Thamada Venkata Ramana. …Petitioner. And Pennada Venkata Ramana. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.3273 of 2009 ORDER: The petitioner is the plaintiff. He filed a suit, being O.S.No.21 of 2001, for permanent injunction seeking a direction to the respondent (hereafter called, the defendant) to remove certain pillars raised in the plaint schedule land marked as BFGH. Defendant is opposing the suit. He alleges that BFGH suit schedule land is not a joint land and not pathway and that it exclusively belongs to him by reason of sale deed, whose vendor also is the vendor of the plaintiff. The suit is in trial. At that stage, plaintiff filed I.A.No.128 of 2009 under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking to amend the plaint by adding paragraphs 8(a), 10(a)(a), 10 and 11(a)(a). Be it noted, para 11(a)(a) relates to the relief portion of the suit. This time plaintiff sought a declaration that BFGH marked portion in the plaint plan as a joint lane and that the plaintiff as well as public in the vicinity have got right of ingress and egress through the same. The same was opposed by the defendant. The Court below, namely, Principal Junior Civil Judge, Palakol, which is trying O.S.No.21 of 2001, by order dated 20.03.2009 dismissed the application for amendment on a prima facie consideration that such amendment would defeat law of limitation. This is subject matter of the Civil Revision Petition. This Court heard learned Counsel for the petitioner/plaintiff and the learned Counsel for respondent/defendant. Both the learned Counsel placed reliance on Muni Lal v The Oriental Fire and General Insurance Company Limited[1], Radhika Devi v Bajrangi Singh[2], Reddivari Gangireddy v Joint Hindu Family of A.Jayaramireddy and his son[3], K.Chinna Biddamma v J.Krishnama Naidu[4], T.N.Alloy Foundry Company Limited v T.N.Electricity Board[5], Chidri Ashabee v S.Sulochana[6], Shiv Gopal Sah alias Shiv Gopal Sahu v Sita Ram Saraugi[7] and Rajkumar Gurawara (Dead) Through L.Rs v M/s.S.K.Sarwagi and Company Private Limited[8]. The plaintiff is not claiming that he is the owner of the property marked as BFGH. His entire case is that BFGH is a joint lane intended for passage and that he got a right of ingress and egress to the same. His cause of action initially was that the defendant’s action in raising pillars in the suit schedule land. Defendant came forward with a plea that BFGH portion of the suit schedule property is also included in the sale deed under which he purchased the property and virtually defendant is claiming title of the land and also denying the case of the plaintiff that it is a joint lane. In those circumstances, amendment was necessitated. Trial Court considered the issue with reference to, presumably, Article 58 of the Limitation Act, 1963. Even if this is applied when there is a dispute as to whether a particular land forms part of a joint lane/pathway it gives a continues cause of action and the person aggrieved is denied right to use the property as a passage lane. In that view of the matter, the order of the trial Court suffers from error, which needs to be corrected. As rightly pointed out by the learned Counsel for respondent, the suit was filed in 2001 and defendant put in his defence immediately thereafter, plaintiff waited almost eight years. Therefore, he should be mulcted with costs for indulgence in prosecuting the case. While allowing the amendment application he can be asked to pay the costs. Accordingly, this Civil Revision Petition is allowed. The impugned order of the trial Court in I.A.No.128 of 2009, dated 20.03.2009, is set aside. The said Interlocutory Application shall stand allowed. Plaintiff shall carry out the amendment and file amended plaint within a period of two weeks from today. Respondent herein shall file written statement within four weeks thereafter. Petitioner/plaintiff shall also pay the costs of this Interlocutory Application and the Civil Revision Petition in a sum of Rs.2,000/- (Rupees Two Thousand only) to the learned Counsel for the respondent appearing in this Court. The costs shall be paid within one week, in default of which, this order shall stand rescinded. Needless to observe that the findings and conclusions hereinabove are intended only for the purpose of disposal of Civil Revision Petition. The trial Court has to decide the issues without in any manner influenced by the observations made hereinabove. _______________ (V.V.S.RAO, J) 17.08.2009 vs [1] AIR 1996 SC 642 [2] AIR 1996 SC 2358 [3] 2000 (6) ALT 234 [4] 2001 (1) ALT 342 [5] 2004 SAR (Civil) 285 (SC) [6] 2007 (4) ALT 209 = 2007 (3) ALD 745 [7] AIR 2007 SC 1478 [8] AIR 2008 SC 2303