THANGARAJA PADAYACHI Vs. NATESA PADAYACHI

JUDGEMENT

(1.) THIS revision is against the order of the learned district Munesif , Panruti , allowing the amendment petition filed by the plaintiffs in I. A. No. 890 of 1993 in O. S. No. 591 of 1987 for the relief of declaration and injunction in respect of the property shown as B schedule in the amendment petition. The plaintiffs/respondents herein filed the suit for mandatory injunction for the removal of the fence shown as'x''y'in the plan. Subsequently this petition was filed alleging that the defendants/ petitione rs herein have encroached upon 915 sq. ft. of the property east of the fence and they must be permitted to amend the plaint for the relief of declaration and also for recovery of possession. THIS was resisted by the defendants but the lower court has ordered for the amendment of the plaint.

(2.) THE learned counsel for the revision petitioners Mr. Ragahavachari would contend that the relief sought for in the plaint is only mandatory injunction in respect of a fence shown along'x' 'y'whereas the amendment sought for is for declaration and recovery of possession of'b'schedule property comprising 915 sq. ft. and the relief completely alters the nature of the suit and therefore the amendment ought not to have been allowed by the lower court. He also would contend that the B schedule property sh own in the petition for amendment is not the subject matter in the main suit and therefore when the relief cannot be granted in respect of the property not subject matter of the suit, the amendment cannot be allowed to include that property.