SUBRAMANIAN Vs. MARIAMMAL AND ORS.

JUDGEMENT

(1.) That the instant Civil Revision Petition is filed to permit the Petitioner to amend the prayer of the suit by adding the relief of mandatory injunction and to amend the pleadings which was dismissed by the trial Court.

(2.) According to the learned counsel for the Petitioner, the Revision Petitioner filed the suit against the respondents herein in O.S.No.114 of 2013 for Declaration and Permanent Injunction before the learned Sub-Court, Srivilliputhur. Since the 2nd Respondent herein constructed a house by encroaching upon the pathway in which the Revision Petitioner is having access, he filed a Petition in I.A.No.286 of 2013 to appoint an advocate commissioner. The Learned Advocate Commissioner filed report noting down the physical feathers with measurements and the encroachment. Hence the Petitioner herein filed an application in I.A.No.1002 of 2015 to amend the pleadings and prayer of the suit. The Respondents herein resisted the said application to allow the same. After enquiry the learned trial Judge dismissed the amendment application by order at 08.03.2018 which is impugned in this Civil Revision Petition.

(3.) The Learned counsel for the Revision Petitioner would submit that since the 2nd Respondent constructed his house by encroaching upon the pathway to an extent of 2.6 feet during the pendency of the suit, which necessitated him to file the above amendment application. However, it was dismissed by the trial Court on an erroneous appreciation of facts and law by holding that even if the Respondents herein encroached upon the public pathway during the pendency of the suit, he ought to have filed separate suit. The Learned counsel contented that the said finding of the lower Court is perverse and the Court below ought to have allowed the amendment application to avoid multiplication of proceedings. The Learned trial Judge failed to consider the fact that the 2nd Respondent made construction pending suit which could be found from the report of the Advocate Commissioner.