ANDAL AMMAL Vs. V SUSHEELA

JUDGEMENT

(1.) THE Court made the following ORDER: This revision is filed against the order of the learned 1st Additional District Judge, Coimbatore permitting for the amendment of the plaint.

(2.) THE suit was filed by the respondent/ plaintiff for declaration that she is entitled to use the suit passage. She claimed only an easementary right in the property describing the same as the property of the corporation. THE suit has been dismissed by the trial court and the appeal is now pending before the learned 1st Additional District Judge, Coimbatore. At this stage the petitioner filed a petition to amend the plaint for easement by prescription on the ground that she is enjoying the passage from 1927 onwards and also for demolition of the wall said to have been put up subsequent to the filing of the suit.

(3.) THEN coming to the mandatory injunction, in the counter itself these petitioners have admitted that a wall was put up subsequent to the dismissal of the suit. However, they have stated that with the consent of the plaintiff, this wall was put up. Whether the plaintiff gave consent or not is a matter of evidence. At the same time, as the wall has been put up subsequent to the suit, naturally the aggrieved person is entitled to ask for the removal of the wall by way of mandatory injunction. As this relief was unavailable at the time of the suit, because the cause of action has arisen only subsequently the objection for mandatory injunction also carries no weight. The learned counsel for the revision petitioner would contend that in the pleading regarding the mandatory injunction, a gate also is referred to, which has been dealt with in another suit, in which the finding is against the present respondent and therefore, that part of the relief should not be allowed. There is no evidence to show that the gate portion of the wall in the pleadings for the mandatory injunction has been dealt with in any other suit. If really any portion of the property relating to the mandatory injunction has been dealt with in any other suit, the revision petitioners herein are entitled to raise that in their additional written statement and evidence also can be let in at the time of the enquiry. Therefore, we cannot presume that this property has been dealt with in any other suit when the relief itself is sought for only now. Hence the court below was right in allowing the amendment.. I may also refer to the apprehension of the revision petitioner with regard to the observation made in para.9 of the impugned order of the court below. As the trial court has considered the user of the lane by the plaintiff as permissive, the court below has observed that the trial Judge without justification has given a finding that it is permissive and according to the learned counsel for the revision petitioner this observation will affect the merit of this appeal. Whatever has been observed in this interim application is not going to have any bearing to the main appeal which will have to be disposed of on merit. Therefore, the observations in para.4 will certainly have no adverse effect on the revision petitioners. Subject to this observation, the revision is dismissed at the stage of admission.