P LAKSHMANAN Vs. M KRISHNAPPA

JUDGEMENT

(1.) The above civil Revision Petition is directed against the fair and decretal order dated 5.7.1999 made in I.A.No.48 of 1998 in A.S.No.50 of 1997 by the Court of Subordinate Judge, Hosur.

(2.) Tracing the history of the above civil revision petition coming to be filed, it comes to be known that the petitioner herein has filed the suit in O.S.No.1 of 1995 on the file of the Court of District Munsif, Hosur praying to declare his easementary rights by using the common way on Western side of the plaintiff's shed in the house site and for permanent injunction restraining the defendants from interfering with the plaintiff's easementary rights. The said suit having been dismissed by the trial Court by its judgment dated 31.7.1997, the petitioner/plaintiff preferred an appeal in A.S.No.50 of 1997 before the Court of Subordinate Judge, Hosur. Pending the said appeal, the petitioner/plaintiff has filed a petition in I.A.No.48 of 1998 before the lower appellate Court under Order 6 Rule 17 CPC praying permission of the Court to amend the plaint thereby including the relief of mandatory injunction also in the plaint directing the defendants to demolish and remove the building and such other construction put up by them over the suit property and on their failure to do so, the same to be carried out through the process of the Court. The said petition having been dismissed by the lower appellate Court, the appellant/plaintiff has come forward to file the above civil revision petition on certain grounds as brought forth in the grounds of revision.

(3.) During arguments, the learned counsel for the petitioner would submit that the original relief claimed in the suit was for a declaration of the easementary right to use the common pathway and for permanent injunction from interfering with the petitioner's right to use the common pathway; that since the respondents made attempts to put up pillars and structures on the common pathway, the I.A.No.48 of 1998 was filed in the appeal suit with the same pleadings and additional relief such as mandatory injunction to be added along with the earlier reliefs and the same having been dismissed by the lower appellate Court as per its order dated 5.7.1999, the petitioner has come forward to file the above civil revision petition. The learned counsel for the petitioner would end up his argument citing from an order of the learned single Judge of this Court in PALANIAMMAL vs. V.K.RAMANATHAN AND 4 OTHERS reported in 2002(1)CTC 618 regarding the amendment of the pleadings, the crux of which is given in para No.8 of the said order, which is extracted hereunder: