IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.3.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD).No.2346 of 2007 and M.P.No.1 of 2007 1.Muthu 2.Pattabi 3.Govindaraj 4.Ealumalai ... Petitioners vs. Bhakthavachalam ... Respondent This civil revision petition is filed against the order dated 18.4.2007 passed in I.A.114 of 2007 in O.S.No.63 of 2006 by the Additional District Munsif, Chengam. For Petitioners : No appearance For Respondent : No appearance ORDER
Inveighing the order dated 18.4.2007 passed in I.A.114 of 2007 in O.S.No.63 of 2006 by the Additional District Munsif, Chengam, this civil revision petition is focussed.
2. Pithily and precisely, tersely and briefly, the relevant facts, which are absolutely necessary and germane for the disposal of this revision petition would run thus:-
The respondent/plaintiff filed the suit seeking the following reliefs:
“to grant an order of permanent injunction restraining the defendants, their men, agents and servants from interfering with the plaintiff’s enjoyment of the ‘B’ schedule channel as a co-owner shown as ‘ABCD’ in the rough sketch to irrigate the ‘A’ schedule mentioned property from the well in S.No.170/8F.”
While so, the defendants entered appearance and filed the written statement; subsequently, the plaintiff filed the I.A.No.1124 of 2007 under Order 6 Rule 17 of C.P.C.so as to get the plaint amended by incorporating the prayer for mandatory injunction to restore the channel, which was allegedly demolished by the defendants during the pendency of the suit. The lower Court, after hearing both sides allowed the I.A. Being disconcerted and aggrieved by the said order, this civil revision petition is focussed by the defendants on various grounds.
3. Despite printing the names concerned, none appeared.
4. The plain poring over and perusal of the typed set of papers, including the order of the lower Court, would demonstrate and display, evince and exemplify that the suit is between near relatives and the dispute is concerning a channel to take water from a common well. At the time of filing the suit, according to the plaintiff, there was a threat to the channel as described in the sketch, being demolished at the instance of the defendants. During the pendency of the suit, interim injunction was granted by the lower Court but the defendants demolished the said channel, which according to the plaintiff, necessitated them to file the I.A.No.114 of 2007 to get the plaint amended, so as to incorporate the prayer for mandatory injunction to restore the channel at the hands of the defendants.
5. The lower Court, after hearing both sides allowed the I.A. Being disconcerted and aggrieved by the said order of the lower Court, this revision petition is focussed by the defendants on various grounds inter alia thus:-
the lower Court committed serious error in not considering the fact that there was no shared or shred, iota or miniscule extent of evidence to prove or establish that as on the date of filing of the suit there was such a channel; the said channel is a imaginary one and in such a case, the question of restoring it does not arise.
6. The fact remains that in the affidavit, accompanying the I.A.No.114 of 2007, at paragraph 5 it is stated thus:
“5. the respondents threatened to destroy the channel ‘AB’. Therefore, I filed the above suit and interim injunction also granted in my favour.”
7. The said fact of the lower Court having granted interim injunction was not disputed by the defendants in their counter. It therefore connotes and denotes that at one point of time the lower Court, after satisfying itself that there existed such channel and that it should be preserved, pending disposal of the suit, granted such interim injunction. However, according to the plaintiff the said channel was demolished. It is for the plaintiff to prove during trial about the existence of the channel as well as the subsequent demolition of it during the pendency of the suit by the defendants. The lower Court, after considering the pro et contra and au fait with law allowed the application by exercising its discretionary power, which warrants no interference by this Court.
8. I am fully aware of the fact that as per the amended Order 6 Rule 17 of C.P.C. in a casual manner, amendment should not be allowed. But here the facts, as detailed supra, are such that there is nothing to indicate and exemplify that the plaintiff filed the suit on an imaginary channel. There is also no indication that the plaintiff attempted to take chances with the Court by first praying for permanent injunction and thereafter tried to get the suit amended as one for mandatory injunction. Hence, I am of the considered opinion that the order of the lower Court warrants no interference.
9. In the result, this civil revision petition is dismissed by confirming the order of the lower Court. No costs. Consequently, connected miscellaneous petition is dismissed.
Msk
To
The Additional District Munsif,
Chengam