IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE TWENTY THIRD (23rd) DAY OF FEBRUARY, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No.2631 of 2010 Between: R. Rajendra Prasad … Petitioner And: Rajaiah … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No.2631 of 2010 ORDER: This revision petition is directed against the order dated 08.02.2010 in IA No.945 of 2009 in OS No.1026 of 2007 on the file of the Principal Rent Controller cum 12th Junior Civil Judge, Hyderabad, wherein, the said application filed by the petitioner herein-plaintiff for amendment of the plaint under Order VI Rule 17 CPC, was dismissed. 2. Heard both sides. Perused the record. 3. The petitioner herein filed suit for permanent injunction. The respondent/defendant filed written statement contesting the suit. When the matter came up for trial, the petitioner herein filed an application i.e., IA No.752 of 2007 seeking to add the relief of mandatory injunction and the trial Court allowed the said petition. Aggrieved by the same, the defendant filed CRP No.4829 of 2008. This Court by order dated 01.12.2008 allowed the same and set aside the order of the trial Court, with further direction that “if the respondent finds any permanent structure created by the revision petitioner causing any obstruction to the enjoyment of their passage, the respondent is at liberty to file an application for appointment of a Commissioner to localize the premises and if there is any such permanent obstruction, he is at liberty to file the application for amendment of the plaint and the lower Court may pass appropriate orders on such application whether the amendment is to be allowed or not”. Thereafter, the plaintiff filed an application in IA No.300 of 2009 for appointment of a Commissioner and the Commissioner was appointed and he made local inspection and filed report, stating that there are permanent structure made up with cement covered with polish stones and that there is a asbestos sheet roof of the defendant’s house up to 2 ft. height out side his house on the southern side. According to the defendant, there were no permanent structures and whatever structures were found, were temporary in nature. Based on the report of the Commissioner and in view of the earlier order of this Court in CRP No.4829 of 2008, the plaintiff filed the present IA No.945 of 2009 for amendment of the plaint by seeking additional relief of mandatory injunction for removal of the permanent construction. The respondent/defendant opposed the said application, alleging that the pial noticed by the Commissioner is in existence for the last 15 years and the age of the pial was also not noted by the Commissioner and there are no permanent structures. The respondent/defendant further contends that the passage is meant for common use and enjoyment and is vested with the Municipal Corporation and therefore, the petitioner is not entitled for the relief of mandatory injunction. 4. The learned Junior Civil Judge, by impugned order, dismissed the said application on the ground that mere existence of pial as per the report of the Commissioner is not a ground for seeking amendment of plaint for removal of the pial and other constructions. Aggrieved by the same, the plaintiff filed the present revision petition. 5. The dispute in the suit relates to a passage. The plaintiff filed the suit for permanent injunction. The interim order was also granted restraining the defendant from causing any interference and blocking the passage at the entrance of the suit property. The plaintiff alleges that during pendency of the suit and when the matter was being transferred from the file of 10th Junior Civil Judge to the 12th Junior Civil Judge, the defendant made a pucca construction of pial and other small structures by blocking common passage, causing obstruction for ingress and egress. The plaintiff further alleges that the Andhra Bank, which is tenant of the plaintiff, suffers loss and inconvenience due to blocking of common passage by the defendant. When the plaintiff sought amendment of the plaint for removal of the pial and other structures, which according to him is permanent in nature by way of mandatory injunction, the defendant contended that the structures, if any are only temporary in nature and the passage is also vested in the Municipality. In the earlier order passed by this Court in CRP No.4829 of 2008, liberty was given to the plaintiff to file application for appointment of Commissioner to localize the premises and if there is any such permanent obstruction, the plaintiff was granted further liberty to file application for amendment of the plaint. Accordingly, the Commissioner was appointed and he filed a report stating that there are about 16 flower pots made up of soil with small plants in it kept on the pial and two PVC drums and some stones were put on the pial and the pial is on the southern side of the defendant’s house is made up of cement and covered with polish stones, which is permanent structure. The Commissioner also observed that the asbestos sheet roof of defendant’s house is extending up to about 2 ft. out side on the southern side. He also observed that the pial is constructed on the northern side entrance. The question as to whether or not the above structures noted by the Commissioner were constructed subsequent to filing of the suit and whether or not they are permanent in nature and are liable to be removed, are all the matters to be considered during the course of trial on evidence. When according to the plaintiff, the said structures were raised by the defendant subsequent to filing of the suit and therefore, he seeks the amendment of the plaint by adding mandatory injunction for their removal, there cannot be any tenable objection for the proposed amendment when liberty was to given to the plaintiff to so amend the plaint by this Court in the earlier order. The plaintiff sought appointment of a Commission as per liberty given by this Court and the Commissioner filed a report noting the alleged structures and further observing that the pial is made up of cement covered with polish stones, which is permanent structure. In view of the said report of the Commissioner, the plaintiff is certainly entitled to seek amendment of the plaint by adding the relief of mandatory injunction for removal of the permanent structure. Whether or not the plaintiff is entitled for that relief is altogether a different matter that can be decided only after evidence is recorded during the trial. 6. Learned counsel for the respondent/defendant would point out that the prayer in the petition is rather vague, as the plaintiff seeks removal of the pial and other structures of the suit schedule property without disclosing particulars of the other structures. When the plaintiff is seeking the relief of mandatory injunction, it is necessary to plead as to the nature and dimension of the structure, the removal of which is sought for. The relief of mandatory injunction cannot be granted in general terms, but has to be confined to the specific structures, which are proved to be causing obstruction to the common passage. However, the dismissal of the petition for amendment by the trial Court is unsustainable in view of the earlier orders passed by this Court and the Commissioner report, insofar as it relates to the pial. 7. In the circumstances, the impugned order is set aside and the plaintiff’s prayer for amendment is granted insofar as it relates to the pial. The relief in respect of other structures cannot be granted without there being any specific pleading in that regard. It is open to the plaintiff to file separate application in respect of other permanent structures, if any by disclosing their particulars. On such application, if filed, the trial Court may dispose of the same on its merits. 8. In the result, the civil revision petition is allowed as stated above. No order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 23.02.2011 bss