KUPPUSAMY AND OTHERS Vs. ARUNMOZHI AND OTHERS

JUDGEMENT

(1.) The petitioners/plaintiffs filed the suit for declaration against the respondents/defendants in O.S.No.24 of 2011 on the file of the Sub-Judge, Barur. After completion of the pleadings, when the matter was posted for trial, the petitioner filed an Interlocutory Application in I.A.No.15 of 2017 under Order 6, Rule 17 of Civil Procedure Code seeking to amend the prayer in the plaint viz., for recovery of possession. After hearing the arguments, the Interlocutory Application was dismissed by the learned Sub-Judge, Barur, due to latches. They filed an application belatedly and also there is a contradictory statement in the affidavit as well as in the suit . Therefore, the above application was dismissed by the learned Sub-Judge, Barur. Being aggrieved by the order passed by the trial court made in I.A.No.15 of 2017 in O.S.No.24 of 2011, the petitioner filed a present revision petition.

(2.) The learned counsel for the petitioner would submit that the petitioners had earlier filed the suit for declaring that the sale deed dated 26.05.2004 vide Doc.No.316 of 2004 as null and void and also declaration of the plaintiff's property and consequential relief for permanent injunction restraining the defendants. Subsequently, during the pendency of the suit, in the month of January, 2013, the respondents encroached upon the property and they have constructed the building. Therefore, he has filed in I.A.No.15 of 2017 to amend the prayer in the plaint for the relief of recovery of possession. However, the trial court has failed to consider these aspects and dismissed the said application.

(3.) The learned counsel for the respondents/defendants would submit that the petitioners/plaintiffs filed another suit for bare injunction. There is a contradictory statement between the averments made in the suit and the affidavit. Further, the suit was filed in the year 2011, but the Interlocutory Application was filed in the year 2017. Therefore, there is no reason to interfere with the order passed by the trial court.