THE HONOURABLE SRI JUSTICE GODA RAGHURAM CIVIL REVISION PETITION No. 4369 of 2010 Dated: 11-11-2010 Order: Heard Sri T.V.S.Prabhakara Rao, learned counsel for the petitioner and Sri N.Shiva Reddy, learned counsel for the respondent. The revision is by the plaintiff in O.S.No. 63 of 2006, renumbered as O.S.No. 66 of 2009 now on the file of the Court of the Junior Civil Judge, Anaparthy, East Godavari District. The suit was filed initially for a permanent injunction seeking restraint of the defendant from making constructions on the plaint schedule property and from allowing any openings, such as windows and doorways in the wall facing the plaint schedule property. The plaintiff filed I.A.No. 348 of 2006 for appointment of an Advocate Commissioner to measure the disputed properties of both the parties and the constructions allegedly made by the defendant, with the help of a Mandal Surveyor with reference to the documents of the respective parties. The Advocate Commissioner visited the premises in question on 8-3-2008 and filed his report on 22-11-009, wherefrom the plaintiff learnt that the defendant erected a door way and window on the northern side wall adjacent to the plaintiff’s property and had extended the shed into the disputed land to the specified extent, violating the oral agreement between the parties, allegedly. Thereafter the plaintiff/petitioner herein filed I.A.No. 324 of 2010 under Order VI Rule 17 read with Section 151 CPC seeking amendment of the plaint to seek a mandatory injunction as well for removal of the illegally constructed door- cum-window and to remove the projections of the shed into the disputed pathway. This application was resisted by the respondent/defendant contending that on merits no relief as now sought to be included in the plaint was liable to be granted. The respondent also urged in the counter that the suit itself was filed “without clean hands” and that the plaintiff is seeking reliefs without entitlement. The court below after recording the respective contentions of the parties, rejected the application on the ground that the plea of amendment of plaint was filed at a belated stage. The trial of the suit has not yet commenced is the conjoint submission of the respective counsel, in this Court. It is also seen that the application I.A.No. 324 of 2010 was filed by the revision petitioner/plaintiff soon after the report of the Advocate Commissioner dated 22-11-2009 wherefrom he learnt about the allegedly irregular constructions by the defendant. In the circumstances, the court below ought to have exercised discretion and allowed the application and erred in rejecting the same. For the aforesaid reasons, the revision is allowed. The order dated 6-9-2010 of the learned Junior Civil Judge, Anaparthy rejecting I.A.No. 324 of 2010 in O.S.No. 66 of 2009 is set aside. I.A.No. 324 of 2010 is allowed permitting amendment of the plaint as sought in the said application. There shall be no order as to costs. ______________________ GODA RAGHURAM, J 11th November, 2010 GRR