Tmt. S. Alish v. Chandran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.2.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAC.R.P.(PD).No.958 of 2006andM.P.No.1 of 20061.Tmt.S.Alish2.Soundararaj... Petitioners vs.1.Chandran2.Lakshmi... Respondents This civil revision petition is filed against the order dated13.12.2005 passed in I.A.No.16570 of 2005 in I.A.No.7993 of 2003 inO.S.No.2047 of 2003 passed by the 16th Asst.Judge, City Civil Court,Chennai. For Petitioners : No appearance For Respondents : No appearanbceORDERInveighing the order dated 13.12.2005 passed in I.A.No.16570 of2005 in I.A.No.7993 of 2003 in O.S.No.2047 of 2003 passed by the 16thAsst. Judge, City Civil Court, Chennai, this civil revision petitionis focussed.2. A 'resume' of facts, which are absolute necessary andgermane for the disposal of this revision petition, would run thus:-The revision petitioners/plaintiffs filed the suit O.S.No.2047of 2003 seeking the following reliefs:"(i) to grant permanent injunction restraining thedefendants herein, their men, assigns, agents or anybodyclaiming through them from putting up any furtherconstruction by encroaching plot (tenament No.109)belonging to the plaintiffs of an extent of 100.0 sq.ft. https://hcservices.ecourts.gov.in/hcservices/ (or) 1076 sq.ft.) in VOC Nagar, Tondiarpet, Chennai-81,morefully set out in the schedule hereunder. (ii) to grant mandatory injunction directing thedefendants herein to remove the illegally erected cementconcrete two pillars in the plaintiff's tenament area byencroaching the one foot service lane left by theplaintiffs on the western side of their house inplot/tenament No.109, VOC Nagar, Tondiarpet, Chennai-81,more fully set out in the schedule here under."During the pendency of the suit, the plaintiffs filed I.A.No.7993 of2003 and obtained an order of interim injunction, so as to restrainthe defendants from proceeding further with the construction in thesuit property. According to the plaintiffs, even thereafter, inviolation of the injunction order, the defendants raisedconstruction, obstructing the air and light to the plaintiffs'building. Whereupon I.A.No.16570 of 2005 was filed seeking amendmentof the plaint:"(i) Para 9(a) the plaintiffs submit that after grantinginterim injunction the respondents/defendants high handedlyconstructed the parent wall closely along the western sidewall of the plaintiffs and because of such construction,the window on the western side measuring 4' x 4' on thesouthern corner is completely closed and the light and airenjoyed by us have been arrested. Therefore it has becomeessential for us to have the prayer suitably amended byasking for the relief of mandatory injunction to remove theentire illegal construction high handedly put by thedefendants both before and after the grant of interiminjunction."(ii) In para 12(ii) after the words, plaintiffs' tenamentarea, to add the following:-"and the illegal construction abutting the plaintiffs'western side wall to a width of 15 cms and length of 14.30mtrs."Upon hearing both sides, the lower Court dismissed the application.Being disconcerted by and dissatisfied with, the said order of thelower Court, this revision is focussed by the plaintiffs on variousgrounds inter alia thus:The lower Court committed error in not allowing the I.A. foramendment, which was one for incorporating the prayer formandatory injunction, so as to demolish the additionalconstruction made during the pendency of the suit. https://hcservices.ecourts.gov.in/hcservices/

3. Despite printing the names of both sides, no one appeared.4. A bare perusal of the order of the lower Court and the typedset of papers would leave no doubt in the mind of the Court that theorder of the lower Court is far from satisfactory and the lower Courtalso has mis applied the precedent of the Sikkim High Court reportedin AIR 2005 SIKKIM 1 – KARMA DENKA BHUTIA AND ANOTHER VS. SARKI LAMUAND ANOTHER appropriately. 5. The precedent referred to in the lower Court's order emergedrelating to a title suit and in the facts and circumstances of thatcase, according to the learned Judge of Sikkim High Court, thedoctrine of lis pendens would be applicable and that even withoutdeciding the fact relating to construction, the title to the propertycould be decided. As such, it is obvious and axiomatic that theratio decidendi of that precedent is not applicable to the facts andcircumstances of this case.6. Here it is the specific contention of the plaintiffs thatduring the pendency of the suit and that too, in violation of theinterim injunction, the defendants continued the construction andprevented the air and light to enter into the property of theplaintiffs and that the plaintiffs seek demolition of that additionalconstruction also. Put simply, without getting the plaint amendedthe plaintiffs would not be able to obtain the relief of mandatoryinjunction so as to get demolished the new construction, whichprevents the air and light entering into the property of theplaintiffs. Even though the facts are as clear as day,nevertheless, the lower Court has not understood the concept ratiodecidendi in the precedent referred to supra. 7. The lower Court also has not taken into account the specificaverment in the affidavit that the Advocate Commissioner appointed inthe suit already submitted his report pointing out the physicalfeatures and the then existed state of construction. Now the sameaffidavit points out that over and above the then existedconstruction, the defendants raised further construction andcompleted it, preventing the air and light entering into theplaintiffs' property. The lower Court should have applied its mindon all those aspects and allowed the application.8. It is pertinent to note that the aforesaid specific avermentsrelating to appointment of Advocate Commissioner visiting the suitproperty and observing the then existed state of construction havenot been denied at all by the defendants in the counter filed inI.A.No.16570 of 2005. In the facts and circumstances of this case,ample opportunity should have been given to the plaintiffs forgetting the plaint amended, but the lower Court misdirected itself atthe behest of defendants and simply dismissed the application. https://hcservices.ecourts.gov.in/hcservices/

9. The observation made by the lower Court that no proceedingshave been taken for contempt as against the defendants, at theinstance of the plaintiffs, is not at all germane for deciding theI.A. seeking amendment of the plaint. As it is manifest that simplybecause the plaintiffs, for various reasons, have not taken anycontempt proceedings under Order 39 Rule 2(A) of C.P.C. the Courtcannot jump to the conclusion that there was no violation ofinjunction order at all and that there was no merit in theapplication seeking amendment.10. For all the above reasons, the order of the lower Court isnot sound and accordingly, the order dated 13.12.2005 passed inI.A.No.16570 of 2005 in I.A.No.7993 of 2003 in O.S.No.2047 of 2003 isset aside by allowing this civil revision petition and consequently,the I.A.No.12570 of 2005 is allowed. No costs. Connectedmiscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskToThe Registrar, City Civil Court, Chennai.C.R.P.(PD).No.958 of 2006ssr(co)pmk/3.3.2009.