BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/11/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(PD)No.679 of 2008 & CRP(PD)No.680/2008 MP.No.1/2008 Padma Vadivel Murugan Petitioner in both CRPs Vs 1.Gomathi Kathiresan 2.L.Muthiah 3.Prema Sankaran 4.L.Baskaran 5.Dr.L.Subramanian 6.L.Chandrasekaran 7.Subathra 8.Vasuki Alwar 9.Minor Lakshmanan Karthik Respondents in CRP.679/08 1.Gomathi Kathiresan 2.L.Muthiah 3.Prema Sankaran 4.L.Baskaran 5.Dr.L.Subramanian 6.L.Chandrasekaran 7.D.Subathra 8.Vasuki Alwar 9.Minor Lakshmanan Karthik 10.B.Lakshmanan 11.S.Lakshmanan Respondents in CRP.680/08 Prayer These Civil Revision Petitions are filed against the fair and decreetal order dated 23.7.2007 passed in IA.Nos.13 and 46/2007 in OS.No.3/2002 by the learned Additional District Court (FTC-I) Tuticorin. !For Petitioner ... Mr.M.Vallinayagam ^For Respondent ... Mr.K.Govindarajan-R5 Mr.K.Srinivasan-R4 RR1to3 & RR6to9-No Appearance :ORDER
These Civil Revision Petitions are filed against the order dated
23.7.2007 passed in IA.Nos.13 and 46/2007 in OS.No.3/2002 by the learned
Additional District Court (FTC-I) Tuticorin.
2. The brief facts, which are essential for the disposal of these
Civil Revision Petitions, are as follows:-
a. The 1st Respondent is the sister and the Respondents 2 to 5 are
the brothers of the Petitioner/3rd Defendant. The 1st Respondent/Plaintiff has
filed the above said suit for partition and separate possession of the
properties, left by her deceased father Lakshman Pillai. The other Respondents
are her close relatives. Pending the trial, the Petitioner has filed an
application in IA.No.46/2006 to implead one B.Lakshmanan, son of L.Baskaran, the
5th Defendant and S.Lakshmanan, son of L.Subramanian, the son of the 4th
Defendant as the proposed Defendants in the suit.
b. According to the Petitioner, the suit item (10) of the A-
Schedule property in the plaint belongs to her father S.M.Lakshman Pillai and
that property had been purchased by her father from his own funds and for his
own benefit. But, the 5th Defendant claims that northern 1/2 portion of that
property belongs to his son Balaji @ Lakshmanan, the proposed 11th Defendant on
the basis of a registered sale deed dated 6.9.1988 having purchased the same out
of the amounts gifted by his paternal and maternal grand father and he is in
possession and enjoyment of the said property.
b. Likewise, the Petitioner claims that the property bearing
S.No.474/2 and other properties in the name of B.Lakshmanan, son of L.Baskaran
the 4th Defendant herein are the self acquired property of her father Lakshman
Pillai. She has stated that her father had purchased properties in his name and
in the name of his sons and grand sons and all properties were in his possession
till his life time and those properties are also liable to be partitioned.
Therefore, the Petitioner sought to implead the proposed Respondents 10 and 11
as the Defendants in order to enable the court to effectively and completely
adjudicate upon all the properties in question.
c. The 4th Defendant resisted the said application on the ground
that it is the absolute and individual property of his son having purchased the
same as early as on 30.7.1983 out of the funds supplied by his maternal grand
father namely Arumuga Pillai and also from birthday gifts.
d. The 5th Defendant and the proposed 11th Defendant contended that
the northern half of item (10) of the A-Schedule property absolutely belonged to
the proposed 11th Defendant, having purchased the same by a registered sale deed
dated 5.9.1988.
c. The Petitioner also filed another application in IA.No.132007 to
include certain properties detailed in the petition as items 19, 20, 21 and 22
as subject matter of the suit for partition. The 4th Defendant resisted the
said application on the ground that the item (1) i.e. Door No.7 does not exist
at all and the property at Door No.73 is the absolute and individual property of
the 4th Defendant. Likewise, he claimed absolute ownership to the other three
items of the properties, also having been purchased the same as early as on
30.7.1983 and as his son Lakshmanan had established his title in OS.No.43/1999
on the file of the District Munsif, Tuticorin, which was confirmed in
A.No.74/2005.
d. The Trial Court dismissed the said application in IA.No.13/2007
and consequently refused to implead the son of the 4th Defendant as a party to
the suit, however, allowed the petition in IA.NO.46/2006 in part, thus
impleading the son of the 5th Defendant as party Respondent/10th Defendant, who
claimed exclusive ownership to the northern portion of the item (10) of the A-
Schedule property. As against the said orders, these Civil Revision Petitions
have been filed by the 3rd Defendant.
3. Mr.M.Vallinayagam, the learned counsel for the Petitioner
assailed the impugned orders of the court below on the ground that the court
below had disallowed the inclusion of properties on the sole reason that the
Petitioner had not produced any documents or materials to prove that those
properties were purchased by Lakshmanan Pillai. The learned counsel would
contend that while considering as to whether an application for amendment should
or should not be allowed, the court should not go into the correctness or
falsity of the case in the amendment and should not record a finding on the
merits of the case. Whereas the court below having given such a finding, the
same is against the settled law and the order passed by the court below is not
sustainable in law.
4. The learned counsel for the Petitioner placed reliance on the
decision of the Honourable Supreme Court rendered in the case of Rajesh Kumar
Aggarwal and others Vs. K.K.Modi and others [AIR-2006-SC-1647], wherein the
Honourable Supreme Court has held thus:-
“While considering whether an application for amendment should or should not be
allowed, the court should not go into the correctness of falsity of the case in
the amendment. Likewise, it should not record a finding on the merits of the
amendment and the merits of the amendment sought to be incorporated by way of
amendment are not to be adjudged at the stage of allowing the prayer for
amendment.”
5. On the other hand, Mr.K.Govindarajan, the learned counsel for
the 5th Respondent would submit that a party cannot seek to amend the pleadings
of the opponent and in the instant case, the Plaintiff being the dominus litus,
she cannot be compelled to include some more items of the property, against
which she did not claim any share. The learned counsel relied on the decision
of this court rendered in the case of Ramasamy and another Vs. P.Marappan and
others [2005-3-MLJ-663-Mad].
6. The learned counsel for the Respondents 4 and 5 also submitted
that the application, filed by the Petitioner belatedly without giving any
explanation whatsoever for not having mentioned the same initially, should not
be entertained at this stage and relied on the decision of the Allahabad High
Court rendered in the case of Bhu Deo Vs. District Judge, Etah and others [Air-
2007-Allahabad-29] in support of the said proposition of law.
7. It is no doubt true, that a court cannot compel the Plaintiff to
amend the plaint at the instance of the Defendant in a partition suit by
including or excluding some properties and also impleadment of parties. But, at
the same time, it is only the Plaintiff who can complain of such compulsion and
it is not open to the other Defendants to complain that the court has no
jurisdiction to compel the Plaintiff to do so.
8. In the instant case, admittedly the 1st Respondent/Plaintiff has
not filed any counter or objection to the said applications before the court
below nor raised any objections in these Civil Revision Petitions. The suit is
one for partition and it is the case of the Petitioner that some more properties
which stand in the name of the sons of the 4th and 5th Defendants herein were
purchased by her father late Lakshman Pillai and the Plaintiff has failed to
include those properties and seeks to include those properties for adjudication.
Simply because there is a delay, the Petitioner cannot be denied a just relief
on the ground that it is not in conformity with the rules of procedure.
9. Order 6 rule 17 of CPC does not interdict an amendment which
adds new reliefs unless it causes injustice to the other party. The proposed
amendment does not constitute an addition of a new cause of action, but it
amounts to no more than adding to the facts already on the record. The
amendment sought for in this suit for partition is not in any way alter or
affect the original suit filed by the Plaintiff or introduce any new case, but
seeks to include certain other properties which stand in the name of the
proposed Defendant. In other words, it can only be said that it is an
expansion of pleas already placed on record.
10. It is to be borne in mind the various pronouncements of the
Honourable Supreme Court that the general rule in the matter of allowing
amendment is that all amendments are to be allowed which do not purport to set
up a new case and which would not work injustice to the other side are
necessary for the purpose of determining the real question in controversy
between the parties. One of the purposes and objects of allowing amendments of
the plaint in the case of this nature is to avoid multiplicity of proceedings.
11. That apart, in an application for an amendment of a plaint, the
court has no power to consider the merits of the proposed amendment. Order 6
Rule 17 of CPC confers a wide discretion upon the courts to allow the amendment
of pleadings at any stage of the proceedings, if it goes to help the court in
deciding the issue between the
parties in a just and fair manner. It is also well settled law that however
late the proposed amendment, the same can be allowed, if it causes no injustice
to the other side.
12. In the instant case, the court below had allowed the amendment
in part and is not justified in refusing the other part merely on the ground
that there is no proof to support the claim of the Petitioner that they are the
self-acquired properties of her father. As already discussed above and in view
of the law laid by the Honourable Supreme Court that the court should not go
into the correctness of falsity of the case in the amendment, the impugned
orders passed by the court below are unsustainable in law and they are liable to
be set aside and accordingly, they are set aside.
13. In the result, these Civil Revision Petitions are allowed. No
costs. Consequently, the connected MP is closed.
Srcm
To:
The Additional District Court (FTC-I) Tuticorin