M SAMINATHAN Vs. VIJAYALAKSHMI

JUDGEMENT

(1.) THE plaintiff/appellant pending the Appeal Suit No.150 of 2003, filed the I.A.299 of 2005 under Order 6, Rule 17 CPC to amend the plaint relief from Permanent Injunction to one of Mandatory Injunction and the same has been dismissed by the learned Subordinate Judge, Kallakurichi. As against the same, the present revision has been filed.

(2.) THE plaintiff in his petition stated that he purchased the suit property from one Perumal in the year 1993 under Ex.A.1 and constructed a terraced house. In the south eastern portion he has constructed a septic tank. Subsequent to his purchase, the respondent/defendant purchased the eastern property from the very same Perumal in the year 1994 under Ex.B.1. THE defendant attempted to encroach upon the eastern portion of the plaintiff's property. Immediately he file d the suit claiming the relief of permanent injunction. Since caveat was pending, he was not able to get any interim relief. Taking advantage of the same, the defendant has put up his compound wall over the septic tank itself and the Advocate Commissioner, appointed by the Court found that the wall over his septic tank is a new one which is fortified by his report and plain in Exs.C.1 and C.2.

(3.) THE learned Subordinate Judge, Kallakurichi, dismissed the said amendment petition holding that even the trial court held that the wall was constructed by the defendant much earlier to the filing of the suit and he should have sought for the relief of mandatory injunction instead of permanent injunction, yet knowing this fact, he filed the suit for permanent injunction and only after 11 years at the appellate stage he filed the amendment petition which is not maintainable under Or.6 Rule 17 CPC. Challenging the same, this revision has been filed.