Illegal encroachment of vacant site
sridhar pasumarthy
(Querist) 05 August 2014
This query is : Resolved
Respected Experts,
A suit was filed for prohibitory permanent injunction seeking to restrain the defendant from interfering with the plaintiff's possession and enjoyment of suit property.
As temporary injunction was not granted, pending suit, defendant encroached portion of suit property and made some constructions over it.
It was more than 3 years that the encroachment was made. But plaintiff's counsel did not choose either to amend the plaint for mandatory injunction or to withdraw the said suit and file a fresh suit for mandatory injunction.
As you know well that limitation for suit for mandatory injunction.is 3 years, which was expired already in this case.
My queries are:-
1. Whether plaintiff can withdraw his suit and file a fresh suit for recovery of possession to avoid the bar of limitation?
2. Can he seek any other relief?
Pls give your valuable suggestions.
dr g balakrishnan
(Expert) 06 August 2014
Apply condonation for delay properly! then u can move
T. Kalaiselvan, Advocate 
(Expert) 07 August 2014
How are related to this issue, is it your client's case?, you may discuss this issue with some seniors at your end,academic queries are not entertained.
Biswanath Roy
(Expert) 10 August 2014
You may pray for appointment of a Commissioner under Order XXVI CPC at your costs and expenses for an investigation relating to encroachment of your land illegally by the Defendant. If the court rejects such application you may proceed to higher forum for relief and redress.
Sonia Prabhu
(Expert) 12 August 2014
It is surprising that Plaintiff has been so casual about all this..I am sure there is some imp link missing.
My suggestion is :
Create a fresh cause of action. That is create a correspondence with the Def regarding encroachment, this will create fresh cause of action and you get new period as per Limitation Act.
R.venkatesh Naidu
(Expert) 14 August 2014
there is not necessary to file fresh suit, you file a petition under order XXVI Rule 9, for appointing an advocate commissioner to note down the physical features, thereafter you can amend the prayer and then you will conduct the case. If your advocate not cooperate with you better you can change your counsel
note: please go through order XXVI Rule 9,
