IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.02.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)No.3730 of 2007 and M.P.No.1 of 2007 1. Subbammal 2. Saraswathi @ Sarasa 3. Muthammal ... Petitioners vs. 1. Palanisamy 2. Bujjappa Gounder ... Respondents Civil revision petition filed under Article 227 of the Constitution of India against the fair and final order dated 22.08.2007 made in I.A.No.252 of 2007 in O.S.No.196 of 2004 on the file of District Munsif Court, Sathyamangalam. For Petitioners : No appearance For Respondents : No appearance O R D E R
Inveighing the order dated 22.08.2007, passed by the District Munsif Court, Sathyamangalam in I.A.No.252 of 2007 in O.S.No.196 of 2004, this civil revision petition is focussed.
2. Both sides called absent.
3. The nitty gritty and the gist and kernel of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
The revision petitioners/plaintiffs filed the suit O.S.No.196 of 2004 for partition seeking the following reliefs along with her mother as P4:
VERNACULAR (TAMIL) PORTION DELETED
D4 died. Whereupon they got the plaint amended as per Order dated 03.07.2006 in I.A.No.343 of 2006. It is the contention of the plaintiffs that their mother Nanjammal executed a Will dated 12.03.2003 in favour of the revision petitioners herein and hence it is their duty to prove the Will and accordingly they wanted to add a prayer in the plaint by getting the plaint amended and to that effect I.A.No.252 of 2007 had been filed seeking amendment of the plaint under Order 6 Rule 17 of CPC. After hearing both sides, the lower Court dismissed the I.A. Being disconcerted and aggrieved by the order of the lower Court, this revision has been filed on various grounds inter alia thus:
The lower Court failed to consider that the plaintiffs in order to claim the share of their deceased mother should prove the Will executed by her and in such a case, there should be a prayer for declaration in that regard.
4. A perusal of the lower Court’s order in conjunction with the typed set of papers would reveal that the impugned order is far from satisfactory as it is not the one passed au fait with law and au courant with facts. Put simply, it is the specific case of the revision petitioners that their mother’s share in the suit property devolved upon them by virtue of the alleged Will executed by their mother and in such a case, there should be a specific prayer for declaration relating to such right in the suit filed by them. The plaintiffs being the dominus litis and also bound to prove their case, should be given ample opportunity in that regard. The nature of the amendment sought is not by way of changing the cause of action or changing the nature of the suit. Hence the ratiocination adhered to by the lower Court that even without such a prayer for declaration about the validity of the alleged Will executed by the mother of the plaintiffs, they could process their claim, is neither here nor there and that too in view of D1 disputing the genuineness of the said Will. Unless there is a prayer in the plaint no issue would not arise. As such, I am of the opinion that there should be a prayer for declaration relating to the genuineness of the Will allegedly executed by the mother of the plaintiffs and there shall also be an issue framed in that regard. In view of the same, the order of the lower Court is set aside and the said I.A. shall stand allowed. After the plaint having been amended, the defendants shall be given opportunity of filing additional written statement. Thereupon necessary additional issues be framed and the matter shall be processed further.
Accordingly, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
gms
To
The District Munsif Court,
Sathyamangalam