IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2010
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE T.MATHIVANAN
L.P.A.Nos. 1 and 2 of 2010
in
M.P.Nos.1 & 1 of 2010
1. Soundarakanakambigai Ammal
2. Mohanakrishnan ..Appellants in both the LPAs.
Vs.
1. Deputy Commissioner,
HR & CE Department,
Trichy.
2. Arunagiri,
Executive Officer,
Athithulya Nadeswarar Temple,
Arangadanallur. .. Respondents in both the LPAs.
Letters Patent Appeal filed under Clause 15 of Letters Patent against the order dated 13.4.1999 in CMP.No.6000 of 1998 in A.S.No.11012 of 1986 passed by the learned single Judge of this Court.
For Appellants : Mr.K.Chandrasekaran
For Respondents: Mrs.Bhavani Subbarayan, Spl.G.P.
(H.R. & C.E.) for R1.
Mr.T.L.Ram Mohan Senior Counsel
for Ms.J.Anandavalli for R2.
COMMON ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.)
These two intra-court appeals challenge the common order of the learned single Judge of this Court made in C.M.P.Nos. 6000 and 6001 of 1998 whereby two applications filed by the respondents/plaintiffs before the trial Court one, seeking for amendment of the plaint and the other, seeking reception of additional documents as additional evidence were dismissed.
2. These appeals have arisen under the following circumstances.
The plaintiff in O.S.No.175 of 1982 laid a suit on the file Subordinate Judge, Villupuram for declaration of the first plaintiff’s title as hereditary Kattalaidar of Deepakattalai in respect of the ‘A’ schedule property and for injunction. The suit was actually contested by both the defendants. The suit was decreed in favour of the plaintiffs. Aggrieved over the same, one of the defendant filed an appeal in A.S.No.747/85 and the other defendant filed another appeal in A.S.No.1012/86. Pending these two appeals, these two applications, C.M.P.Nos.6000 and 6001 of 1998 came to be filed by the respondents/plaintiffs seeking amendment of the schedule of property and for reception of additional evidence.
3. This Court feels it necessary to putforth the facts in the plaint in short.
The first plaintiff’s great grandfather one Ponnusamy Pillai found a Trust known as Deepakattalai and endowed the properties set out in Schedule ‘A’ for the same. The endowment is attached to Shri Adhi Thullianatheeswarar Temple. The great grandfather of the first plaintiff was a Trustee of the said Temple. After the death of the grand father, his son Arunachalam Pillai became the Trustee. On 2.6.1938, the Board framed a Scheme for the management of the temple and the scheme contained some restrictive provisions. Hence, Arunachalam Pillai filed a suit in O.S.No.17 of 1943 on the file of the District Court, South Arcot. The District Court modified the Scheme by a decree dated 3.4.1944 whereby Arunachalam Pillai was declared to be the Managing Trustee of the Deepakkattalai and that the Kattalai properties should be vested with him and his heirs after him as hereditary trustees. It also provides for appointment of two non-hereditary trustees by the Board. Arunachalam Pillai died on 28.4.1962 leaving his wife Ramanujammal as his sole heir. Ramanujammal filed O.A.No.22 of 1963 to declare her as the Hereditary Trustee in respect of the Deepakattalai and the suit was also contested. While the matter stood thus, the other Trustees of the temple tried to remove her from the management of the property and the Deputy Commissioner, H.R. & C.E., suo motu modified the Scheme and appointed the Executive Officer but possession was not actually taken. Ramanujammal questioned the appointment of the Executive officer before the higher authorities. While so, the Executive Officer filed a petition under section 101 of H.R. and C.E. Act for issuance of certificate to take possession of the properties. The said petition came to be dismissed for default. Therefore, the petition filed by Ramanujammal questioning the appointment of the Executive Officer must be deemed to have been cancelled since the said petition was also to be heard along with the petition filed by the Executive officer. Thereafter, another Executive Officer was appointed. He also took steps to take possession of the properties but he did not take possession of the properties. Ramanujammal filed a suit in O.S.No.321 of 1974 on the file of the District Munsif Court, Tirukoilur for declaration of her title and for permanent injunction. The said suit was decreed on 14.4.1974 and the appeal preferred by the Executive Officer against the same was dismissed. Certain charges were framed against her by the Department and the matter was pending enquiry. In the meanwhile, the revision filed by Ramanujammal before the Commissioner was dismissed. On the strength of the certificate, the Executive Officer moved the Sub-Divisional Judicial Magistrate for taking possession of the property under section 101 of H.R.& C.E. Act, but he did not take possession of the property. On 28.4.1980 Ramanujammal died and the first plaintiff, daughter of Arunachalam Pillai succeeded to the office in her own right as herediary trustee as per the Scheme decree and the same was recognised by the Assistant Commissioner, H.R. and C.E. on 27.9.1980. Since Ramanujammal died, the disciplinary proceedings initiated against her were dropped on 25.7.1980. Therefore, the order of the Judicial Magistrate, Ulundurpet directing the warrant of delivery also lapsed. However, the Executive Officer filed C.M.P.No.843/82 against the plaintiffs as though the order against Ramanujammal was binding upon them and delivery was ordered on 9.7.1982. Therefore, the plaintiffs filed Cr.R.C.360/82. The same was dismissed by the High Court observing that the plaintiffs have to file a suit for appropriate remedy. The certificate obtained under section 101 of H.R. & C.E Act will not bind upon the plaintiffs, since it was issued against Ramanugammal. The first plaintiff holds the office in her own right and she is entitled to have any right as Managing Trustee of the Deepa Kattalai. Since the order obtained against the deceased Ramanujammal is sought to be worked out against the 2nd plaintiff, he has also joined with the 1st plaintiff in filing the suit. The certificate under section 101 has been obtained not only for the properties belonging to Deepa Kattalai but in respect of ‘B’ Schedule properties which belong to another endowment known as Thirugnanasambanda Choultry. The first plaintiff and her predecessors-in-title are the hereditary trustees of the said Choultry endowment. The endowment consisted partly of secular and partly of religious charities. By the order of the Deputy Commissioner, H.R. and C.E. Board dated 20.7.63 made in O.A.37/63, 1/3 of the net income of ‘B’ schedule properties was earmarked for religious and the remaining was earmarked for secular charities and the properties should vest with Ramanujammal as hereditary trustee. The 1st plaintiff has become entitled to hold the same as hereditary trustee as per the original trust deed. The defendants have no right to disturb the possession in ‘B’ schedule property. The certificate issued by the Magistrate in respect of ‘B’ Schedule properties is not binding upon the plaintiff. The order for delivery by the Sub Divisional Judicial Magistrate includes ‘C’ schedule which are the private properties of the plaintiff’s family. As Arunachalam Pillai becomes indebted, he had the patta for ‘C’ schedule properties in the name of temple and after the debts were cleared, he did not care to have the patta transferred in his own name. Since Arunachalam Pillai and Ramanujammal failed to get transfer of patta in their names, the H.R. & C.E. Authorities have wrongly included the ‘C’ schedule properties in the said certificate. Hence, the plaintiffs filed a suit for declaration that the ‘C’ schedule properties belong to their family and for permanent injunction.
4. A perusal of the suit clearly indicate that ‘A’ schedule property was earmarked for Deepa Kattalai, ‘B’ Schedule property belongs to another endowment and ‘C’ Schedule property belongs to the plaintiffs exclusively. It was actually contested by the defendants 1 and 2 by filing two separate written statements. The lower Court took the view that the plaintiffs are entitled for a decree as prayed for. Accordingly, decreed the suit. Aggrieved first defendant filed a suit in A.S.No.747/1985 and the second defendant filed a suit in A.S.No.1012/1986. The same were taken up by the learned single Judge of this Court. At that juncture, these two applications viz., C.M.P.Nos.6000 and 6001 of 2009 were filed, one, seeking amendment of the plaint and the other, seeking reception of additional evidence. Both the applications, on enquiry, were dismissed. Under such circumstances, the L.P.As have arisen before this Court.
5. Advancing the arguments on behalf of the appellants, the learned counsel in short would submit in the instant case, the learned single Judge has dismissed the applications erroneously for the reason that there was a long delay in filing those applications for amendment and for receiving additional documents. What was sought in the amendment petition is that originally there were 32 items of properties found in ‘A’ schedule at the time of filing the plaint. After the decree was passed by the trial court and when the matter was taken on appeal by the defendants and when the case bundle was taken to the counsel appearing in the appellate court, the counsel, on perusal of the documents, actually brought to the notice of the plaintiffs regarding the properties which were actually belonged to the plaintiffs by documentary evidence. Only then, the plaintiffs came to know about the same. Under such circumstances, the properties which are originally found in ‘A’ schedule should have been included in ‘C’ schedule which are the exclusive properties of the plaintiffs. The first plaintiff and the second plaintiff did not have the knowledge of the properties. Under such circumstances, once it came to their knowledge, they came forward to file these applications.
6. The learned counsel would further submit that it is true that there was a delay but merely because of the delay, the application for amendment could not be rejected. Even at the stage of second appeal or in the proceedings before the Apex court, there were occasions in allowing the parties either to amend the plaint or to amend the written statement if the circumstances and factual position warrant so. In the instant case, the learned single Judge has pointed out that there was long delay, hence, denied the applications. In the instant case, once the documentary evidence is available, in order to show that the properties exclusively belong to the plaintiffs/appellants, there could not be any impediment to include those items of properties in ‘C’ schedule. In support of his contention, the learned counsel for the appellants, relied on the decisions of the Apex Court and also this Court reported in (i) (2004) 1 M.L.J.100 (Sellammalv. M.Natesan; (ii) 2005(2) CTC 801 (Surinder Singh V. Kapoor Singh(D) through LRs. and others); (iii) 2000(I) CTC 163 ( Pillai,B.K.N. v. P.Pillai); (iv) AIR 2009 Supreme Court 2544 (Sushil Kumar Jain v. Manoj Kumar) and (v) 2006(5) CTC 609 ( Hi.Sheet Industries v. Litelon Limited) and would submit that the applications should have been ordered. Accordingly, the learned counsel for the appellants seeks to allow the appeals and to allow the applications in favour of the appellants.
7. The learned counsel for the respondents in his sincere attempt to sustain the order of the learned single Judge putforth his submissions.
8. After paying its anxious consideration on the submissions made on either side, the Court is of the considered opinion that the order of the learned single Judge does not require any disturbance in the hands of this Court.
9. As could be seen from the available materials, it was a suit for declaration of three items of properties which contain ‘A’ schedule property which was endowed for Deepakattalai and ‘B’ schedule property which belongs to another endowment and ‘C’ schedule property which exclusively belongs to the plaintiffs. It is pertinent to point out, what was all sought to be amended now, by the learned counsel for the appellants by filing two applications at the stage of appeals is that, out of the 32 items found in the ‘A’ schedule property, more than 20 items were to be removed from the ‘A’ schedule and they are to be included in the ‘C’ schedule which was the exclusive property of the plaintiffs. Originally, when the plaint was filed by the appellants before the trial court, it has been specifically stated that the great grand father of the first plaintiff Ponnusamy Pillai found the Trust known as Deepakattalai Trust and endowed the property set out in Schedule ‘A’ for the same. Thus, insofar as this particular part of the plaint is specific that the properties which are found in the ‘A’ schedule were originally endowed by Ponnusamy Pillai for the purpose of Deepakattalai Trust, the plaintiffs have not sought for any amendment in the pleadings of the plaint but they wanted to take 22 items of property which were originally found in ‘A’ schedule to ‘C’ schedule property which exclusively belongs to them. So long as the pleading found in the plaint specifically states that the properties which are mentioned in ‘A’ schedule are endowed and earmarked for Deepakattalai, without any change whatsoever, they cannot be allowed to take the items from ‘A’ Schedule property to ‘C’ schedule property calling those items of property as their exclusive property.
10. As rightly pointed out by the learned counsel for the appellants, in a given case, the Court need not look into the delay that has been caused in allowing the amendment application. It is true, even at the stage of the second appeal, amendment could be allowed, if the circumstances warrant so. But in the instant case, the reason is that, originally, when the suit was filed, amendment application was not filed before the trial Court. It was filed before the First Appellate Forum, that too, 14 years after the judgment was made by the trial court. The reason adduced by the appellants is that when the matter was taken to the counsel appearing for them in the Appellate Forum, he actually scrutinised the documents and found that some of the items in ‘A’ schedule property belongs to the appellants and thus, those items should have been included in the ‘C’ schedule property. The reason adduced by the appellants, cannot be countenanced. Actually, both the plaintiffs/appellants at the time of filing the suit was so matured, apart from that, without verification of the documents, the properties should not have been included in ‘A’ schedule as it belongs to Deepakattalai and also ‘C’ schedule which exclusively belongs to them. Therefore, the contention that they are ignorant of the factual position, cannot be countenanced for the reason that after the death of Arumuga Pillai, an application was taken out under section 101 of H.R.& C.E. Act by the Department where Ramanujammal contested the proceedings initiated by the Department and thereafter, the first plaintiff also contested and further, when the department was taking steps to take delivery of the property under ‘A’ schedule property, the appellants, have contested the proceedings as parties in those proceedings all along. Therefore, now, the appellants cannot be permitted to say that they were ignorant of the factual position and they have no knowledge about the properties which exclusively belongs to them. The plaintiffs/appellants should have clear knowledge about the properties. Therefore, this cannot be taken as a ground for allowing the amendment petition.
11. Apart from this, there was elaborate evidence recorded by the trial Court. As rightly pointed out by the learned single Judge both the parties have putforth their evidence, oral and documentary on the terms of the property found in ‘A’ schedule which belongs to Deepakattalai. If the application for amendment is ordered, it will amount to allowing the plaintiffs to take a different stand by taking major portion of the property from ‘A’ schedule to ‘C’ schedule property calling them as their exclusively property which would cause prejudice to the defendants in the suit. Therefore, on that ground also, the relief of amendment has got to be denied. Further, the decisions cited supra, relied on by the learned counsel for the appellants, will not apply to the facts of this case.
12. On appraisement of all the reason adduced, the learned single Judge has come to a right conclusion that the amendment application cannot be ordered. Insofar as the other application viz., reception of additional documents as additional evidence is concerned, even according to the learned counsel for the appellants, it can be done only if the amendment application is ordered. Once the amendment application is dismissed, the other application requires an order of dismissal.
13. The Court is unable to see any reason to disturb the order passed by the learned single Judge. Hence, both the appeals are dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed.
vsi
To
The Deputy Commissioner,
HR & CE Department,
Trichy