IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.02.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD).No.1155 of 2008 and M.P.No.1 of 2008 Balaraman ... Petitioner vs. Devaki ... Respondent This civil revision petition is preferred against the order dated 18.02.2005 passed by the learned District Munsif, Madurantakam in I.A.No.1914 of 2004 in O.S.No.337 of 2004. For Petitioner : Mr.D.Rajagopal For Respondent : Mr.K.Goviganesan ORDER
Heard both sides.
2. The pith and marrow, the gist and kernel of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run thus:
The revision petitioner herein filed the suit in O.S.No.337 of 2004 seeking permanent injunction as against the defendant. It so happened, the defendant in the said suit, also filed one other suit in O.S.No.364 of 2004, which is one for declaration and injunction. The defendant in O.S.No.337 of 2004 viz., the respondent herein filed an I.A and got the Commissioner appointed to visit the suit property and to submit his report. On such filing of report, the revision petitioner herein filed I.A.No.1914 of 2004 for getting the plaint amended so as to incorporate the prayer for recovery of possession to an extent of 9 inches of land out of the two feet width area described in the “B” schedule of the plaint. The lower Court dismissed the said application. Being aggrieved by and dissatisfied with the said order, the present civil revision petition has been focussed on various grounds among others.
3. The learned counsel for the revision petitioner placing reliance on the grounds of revision, would develop his argument to the effect that the lower court could have allowed the amendment as two suits are pending relating to one and the same area. The plaintiff as on the date of filing was not aware of the fact that the respondent herein encroached an extent of 9 inches in the plaint B scheduled property. Wherefore, after coming to know of the said fact from the Commissioner’s report, he had chosen to file the I.A, which could have been allowed by the lower court but unfortunately, it was dismissed.
4. Whereas the learned counsel for the respondent would advance his argument that the impugned order was passed as early as on 18.02.2005 whereas the revision has been filed almost three years thereafter; as such there are laches on the part of the petitioner in prosecuting his claim; and limitation point also should be considered at the time of allowing the amendment petition for the reason that any amendment would date back to the date of filing of the suit. Here, in this case, the revision petitioner/plaintiff allowed grass grow under his feet and thereby attracted the maxim Vigilantibus et non dormientibus jura subveniunt – The laws aid those who are vigilant, not those who sleep upon their rights and accordingly, his case has to be rejected and the lower Court was right in rejecting the claim of the revision petitioner in I.A.No.1914 of 2004.
5. In this factual matrix, I am of the considered opinion that normally a suit for injunction should not be allowed to be converted into one for possession in view of the obvious reason that a litigant cannot gamble in litigation and he cannot also take chances with the Court. But here, ex facie and prima facie, it is clear that only after the Commissioner submitted his report, the revision petitioner came to know about such encroachment. Earlier to it, he was under the misconception that the entire plaint B Scheduled property was in his possession and that the respondent herein was attempting to trespass in to the said property.
6. Hence, considering the fact that there is no wilful suppression of fact in filing the suit and that in no way the respondent would be prejudiced by allowing the amendment, I would like to allow the I.A and accordingly, the order of the lower court is set aside. However, the submission made by the learned counsel for the respondent relating to limitation point is worthy of being considered and the lower court is also directed to see to it that a specific issue is framed relating to limitation point.
7. Learned counsel for the revision petitioner would make an extempore submission to the effect that both the suits shall be tried together to avoid emergence of conflicting judgments. My above discussion supra would demonstrate and display that both the suits are inter-linked with each other, hence, it would be appropriate for the lower court to take up joint trial of both the cases and pronounce a common judgment.
8. Accordingly, this civil revision petition is allowed, setting aside the impugned order of the lower Court and by allowing I.A.No.1914 of 2004. No costs. Consequently, the connected miscellaneous petition is closed.
vj2
To
The District Munsif,
Madurantakam