IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.11.2010
CORAM:
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
CIVIL REVISION PETITION (NPD) No.581 OF 2005
and
C.M.P.No.6216 of 2005
Tmt. Lalitha Anthony Muthu .. Petitioner
-Vs-
1. S. Krishnan
2. Aswini
3. Yadhava Kumar
4. Priya
5. Raju Kumar
6. Ramakrishnan
7. Vijayalakshmi
8. A.Shanmugasundarakone
9. M/s.Brick and Walls,
represented by Ramesh
10. Subramani
11. J.Pitchayya
12. Aswini
13. Yadhava Kumar
14. Priya
(Respondents/Defendants 12 to 14,
L.R's of the deceased 1st defendant,
impleaded as per order in I.A.
No.12331/2002 dated 27.9.2002)
(Respondents 9 & 12 to 14
are given up in this petition). .. Respondents
Civil Revision Petition filed under Article 227 of the Constitution of India against the order and decretal order dated 7.2.2005 passed in I.A.No.1046/2005 in O.S.No.4604/1994 on the file of learned XVII Assistant Judge, City Civil Court, Madras.
For petitioner : Mr. R.C.Manoharan
For respondents: Mrs. Radhika Krishnan
for M/s.Sarvabhauman Associates
ORDER
This Revision has been filed by the petitioner against the order of dismissal dated 7.2.2005 passed in I.A.No.1046/2005 in O.S.No.4604/1994 on the file of learned XVII Assistant Judge, City Civil Court, Madras, an application to amend the plaint with the relief of mandatory injunction.
2. Heard the submissions of Mr.R.C.Manoharan, learned counsel for the petitioner and Mrs. Radhika Krishnan, learned counsel for the respondents.
3. The learned counsel for the petitioner would submit in his arguments that the lower Court had come to the conclusion of rejecting the plea of amending the plaint with the relief of mandatory injunction as barred by limitation which is premature. He would further submit in his arguments that when the petitioner filed the suit for specific performance, admittedly construction has been erected during the pendency of the suit and it is affected by an order likely to be passed in the suit and therefore there is no question of limitation applicable to the suit and hence the lower Court ought to have found that the law of limitation would not be applicable to the present relief. He would also submit that the lower Court could have even permitted the petitioner/plaintiff to amend the plaint subject to the consideration of law of limitation while disposing of the suit, but it had not been not done so. He would therefore request this Court to interfere with the order passed by the lower Court and to allow the revision.
4. The learned counsel for the respondents would submit in her arguments that the petitioner had asked for an amendment in the plaint including the prayer for mandatory injunction to remove the superstructures. She would further submit that the petitioner after having waited for nine years, had prayed for mandatory injunction which would amount to separate cause of action and the available right of the respondents is affected by such inclusion of the prayer of mandatory injunction and the lower Court is right in rejecting the relief at the threshold and therefore there is no need to interfere with the order passed by the lower Court. She would also submit in her arguments that the principle of granting of inclusion of the prayer of mandatory injunction to the petitioner/plaintiff against the construction during the pendency of the suit is not applicable to the present case, since the petitioner’s counsel was quiet throughout knowing well about the construction made in the suit property. She would also draw the attention of this Court about the orders passed by this Court in C.R.P.(PD).No.2148 of 2004, dated 28.12.2004, in an earlier occasion, directing the lower Court to reconsider the plea of amendment of mandatory injunction as to the law of limitation and pass orders within one month. She would further submit that in accordance with the directions, the lower Court had considered the plea of amendment of mandatory injunction and the lower Court had found that the said plea of law of limitation is not within the period of time and therefore it had rejected the petition for amendment of the prayer of mandatory injunction. She would further submit that the revision cannot be entertained at this stage to question the order passed by the lower Court and she would also request this Court to dismiss the revision.
5. I have given my anxious consideration to the arguments advanced on either side.
6. The admitted facts are that the petitioner had filed the suit for specific performance of the contract said to have been entered in between the petitioner and the defendants and had prayed for execution of sale deed and for other reliefs. The reliefs sought for in the plaint are as follows:-
“(a) for specific performance of the contract for sale pursuant to the receipt of the entire sale consideration of Rs.50,000/- and issued a receipt on 28.11.1992 by the 10th defendant on behalf of the 1st defendant representing for himself and on behalf of the defendants 2 to 9 and to compel them to execute and register the sale deed in respect of the suit property Plot No.21 in Seetharam Nagar Layout at Velachery in favour of the plaintiff or in the name of her nominees at the cost of the Plaintiff. In default, this Hon’ble Court itself may execute and register the Sale Deed on behalf of the defendants 1 to 9 in favour of the plaintiff or her nominee;
(b) for a permanent injunction restraining the 11th defendant or his men or agent or any persons claiming or acting under him from transferring, alienating or encumbering the suit property in any manner to third parties;
(c) for the cost of the suit; and
(d) for such other reliefs as this Hon’ble Court may deem fit and proper in the circumstances of the case and thus render justice.”
7. Now, the petitioner had come forward with an application to include the prayer of mandatory injunction to demolish the superstructure put up by the 11th defendant in the suit property during the pendency of the suit and the said application was dismissed by the lower Court. The earlier revision preferred by the petitioner was also ordered with a direction to the lower Court to consider the plea of mandatory injunction sought for by the petitioner as to law of limitation and to pass orders. The lower Court had accordingly considered and had found that the prayer for mandatory injunction is not within the period of limitation and therefore the relief of mandatory injunction was not ordered to be included in the prayer.
8. It is not disputed that the constructions were put up by the 11th defendant in the year 1995. The petitioner/plaintiff had sought for inclusion of the relief only in the year 2004. The lower Court had found that the period of limitation sought for to include the prayer of mandatory injunction would be three years from the date of cause of action and therefore it had come to the conclusion that the prayer is not within the period of limitation.
9. It is brought to the notice of this Court by the learned counsel for the petitioner that in a suit for specific performance, the petitioner is entitled to seek for possession after execution of sale deed and she had not prayed for any relief of possession of the suit property by amending or including the prayer for possession as per Section 22 of the Specific Relief Act and therefore the prayer of mandatory injunction, which is inclusive of prayer of possession, can also be granted and the reasoning given by the lower Court for not entertaining the plea of mandatory injunction cannot be sustained. This argument of the petitioner could have been considered only at the time of disposal of the suit depending upon the inclusion of prayer for possession of the suit property as per Section 22 of the Specific Relief Act, in the event of granting the relief of specific performance. However, the prayer of mandatory injunction cannot be considered at the time of passing of such an order if the prayer for possession has not been included and ordering for specific performance in the event of mandatory injunction has not been prayed for.
10. The right of the petitioner would be defeated in the event of the relief of inclusion of prayer of mandatory injunction is not permitted by amending the plaint. At the same time, the right accrued to the respondents/defendants was not also be taken away by permitting the petitioner to amend the plaint for including the prayer of mandatory injunction and therefore suitable directions shall be issued to the lower Court for considering such defence of the respondents/defendants to be raised on their behalf.
11. Therefore, it has become necessary for this Court to permit the petitioner to amend the plaint as sought for in the application filed for that purpose subject to the law of limitation, which is to be decided by the trial Court at the time of disposal of the suit. On such amendment, the respondents/defendants would be given an opportunity to raise their defence regarding the law of limitation along with other pleas likely to be taken by way of filing additional written statement and thereafter to proceed with framing of additional issues. The lower Court is also directed to dispose of the suit as expeditiously as possible, within a period of three months from the date of settling the additional issues.
12. With the aforesaid observations and directions, the Civil Revision Petition is allowed and the impugned order dated 7.2.2005 passed by the learned XVII Assistant Judge, City Civil Court, Chennai in I.A.No.1046/2005 in O.S.No.4604/1994 is set aside. There shall be no order as to costs. Consequently, CMP.No.6216 of 2005 is closed.
vks
To
1. The Registrar,
City Civil Court,
Chennai