G S RAMACHAR Vs. BLOCK DEVELOPMENT OFFICER KAVERIPATNAM

JUDGEMENT

(1.) WHEN the appeal was called, Mrs.Prabha Sridevan, learned counsel for the appellant, reported that the 8th defendant, who is the 6th respondent in the appeal, died and that has filed an application to bring his legal representatives on record. I find that the respondent herein who was the 8th defendant in the suit remained ex parte in both courts below. In this second appeal, no notice was issued to him and the counsel dispensed with under O.41, Rule 14 of the Code of Civil Procedure. It is also seen that prayer in the plaint is not only on behalf of the plaintiffs but also on behalf of defendants and 9. Thus, the deceased defendant was sailing with the plaintiffs and there was no as among them. In these circumstances, there is no necessity to bring the representatives of the 6th respondent (8th defendant) on record in this second appeal. O.22, Rule 4(4), C.P.C., the court can exempt, whenever it thinks fit, the plaintiffs from necessity of substituting the legal representatives of any such defendant who had remained ex parte.. Hence, there is no necessity for the plaintiff to bring the legal representatives the 6th respondent (8th defendant) on record in this second appeal.

(2.) THE second appeal is taken up for hearing. THEre is no merit in this appeal. THE below have declared the title of the plaintiffs to the property in question. But the appellate court has found that the plaintiffs are not entitled to mandatory injunction of their conduct in keeping quiet when the respondents 1 to 3 formed the road. Even the suit, a notice was issued under Ex.A-1, dated 12.12.1972. In that notice, it was that the respondents 1 to 3 were trying to trespass on the property and form a respondents 1 to 3 were threatened with a suit if they failed to comply with the made in the said notice within two months therefrom. Yet the suit was filed 30.1.1975. In paragraph 16 of the plaint, it is stated that the road was completed respondents 1 to 3 from the point "X" to "Y". It is further stated that the plaintiffs are to damages at least at Rs.100 per year from the defendants from December, December, 1974. Thus, there is an admission that the road was completed in December, 1972. THErefore, it is clear that the plaintiffs were guilty of laches. THEy should have steps even when there was an attempt on the part of the defendants to form a obtained an injunction restraining them from forming the road. Having allowed authorities to spend a lot of public money for forming the road, it is not open to the to ask for mandatory injunction. THE relief of mandatory injunction is discretionary lower appellate court has applied the correct principles of law in refusing to grant the mandatory injunction.

(3.) THE second appeal fails and the same is dismissed. No costs. Appeal dismissed.