Madras High Court
M.Parvathamani vs M.Palanisamy on 6 December, 2021
C.R.P.(PD).No.2430 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD).No.2430 of 2016
and
C.M.P.No.12560 of 2016
M.Parvathamani .. Petitioner
Vs.
1.M.Palanisamy
2.P.Senthilkumar
3.Nallasivam
4.Manoranjitham .. Respondents
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and decretal order dated 15.03.2016
made in I.A.No.27 of 2016 in O.S.No.99 of 2013 on the file of the Sub Court,
Perundurai.
For Petitioner : Mr.C.Prabakaran
for Mr.C.S.Saravanan
For R1 : Mr.V.Ragunathan
For RR 2 to 4 : No appearance
1/9
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2430 of 2016
ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
This Civil Revision Petition is filed against the fair and decretal order
dated 15.03.2016 made in I.A.No.27 of 2016 in O.S.No.99 of 2013 on the file
of the Sub Court, Perundurai.
2.The petitioner is plaintiff in O.S.No.99 of 2013 on the file of the Sub
Court, Perundurai. She filed the said suit for partition as against the
respondents. The 1st respondent filed written statement on 29.10.2013 and the
respondents are contesting the suit. Trial commenced. When the suit was
posted for cross examination of D.W.1, the petitioner filed I.A.No.27 of 2016
under Order XXIII Rule 1 (3) (a) & (b) and Section 151 of the Code of Civil
Procedure to permit the petitioner to withdraw the suit and file a
comprehensive suit. According to the petitioner, the suit properties are
ancestral properties. The 1st respondent is her father and 2nd respondent is her
brother. The respondents 3 & 4 are her father's brother's son and daughter.
The petitioner issued a notice dated 14.06.2013 to the respondents 1 & 2 to
partition the ancestral property. On 15.07.2013, the 1st respondent sent a
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C.R.P.(PD).No.2430 of 2016
reply to the notice sent by the Advocate of the petitioner stating that 1st
respondent did not mention that his father purchased the property and
partition took place between them. But, in the written statement, the 1 st
respondent has stated that the suit properties are not ancestral properties and
it is self acquired properties of Mosimoopan @ Karuppamoopan, who
purchased the same by sale deed dated 26.09.1969 and 02.02.1980 and there
was partition between his father, 1st respondent and his brother Lakshmanan
as per the partition deed dated 12.04.1989. The petitioner came to know
about the sale deeds and partition deed only during trial at the time of cross
examination of D.W.1. She has to verify the genuineness of the two sale deeds
and partition deed. The 1st respondent has stated that Mother of the
respondents 3 & 4 and other 15 co-sharers in Survey No.727 measuring 9
acre 39 cents have to be impleaded as parties to the suit. If all the parties are
to be added, it will take time. Due to the above formal defects, the petitioner
may be permitted to withdraw the suit and file a fresh comprehensive suit.
3.The 1st respondent filed counter affidavit and denied all the averments
and submitted that 1st respondent filed written statement on 29.10.2013 and
pointed out that petitioner has not impleaded necessary parties and not
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C.R.P.(PD).No.2430 of 2016
included all the purchasers. Inspite of the same, the petitioner has not taken
any steps to implead all the parties and to include all the properties. Only
when the suit was posted for evidence of respondents after filing proof
affidavit and at the time of cross examination of D.W.1, the petitioner has
filed the present application. The petitioner has filed Ex.P8 along with plaint.
The petitioner knowing fully well that all the properties in Ex.P8 to be
included in the suit, she has failed to include those properties in the suit. The
petitioner has not sought for permission to withdraw the suit and to file a suit
on the same cause of action. The petitioner has not satisfied the ingredients of
Order XXIII Rule 1 & 3 of the Code of Civil Procedure and prayed for
dismissal of I.A.No.27 of 2016.
4.The learned Judge considering the averments in the affidavit and
counter affidavit, dismissed the I.A.
5.Against the said order of dismissal dated 15.03.2016 made in
I.A.No.27 of 2016, the petitioner has come out with the present Civil Revision
Petition.
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C.R.P.(PD).No.2430 of 2016
6.Heard the learned counsel appearing for the petitioner as well as the
learned counsel appearing for the 1st respondent and perused the entire
materials on record. Though notice has been served on the respondents 2 to 4
and their names are printed in the cause list, there is no representation for
them, either in person or through counsel.
7.From the materials on record, it is seen that the petitioner filed suit for
partition against the respondents stating that the suit properties are ancestral
properties and she is entitled to a share in the suit properties. On the other
hand, it is the case of the respondents that suit properties are not ancestral
properties and it is self acquired properties of Mosimoopan @
Karuppamoopan. The said Mosimoopan @ Karuppamoopan purchased the
same by two sale deeds dated 26.09.1969 and 02.02.1980. The 1 st respondent
along with his father and brother, by the deed of partition dated 12.04.1989
partitioned the same among themselves. Further, the 1 st respondent has stated
in the written statement that mother of respondents 3 & 4 is a necessary party
to the suit. It is the further case of the 1 st respondent that certain other
properties are not included in the suit for partition even though the petitioner
was aware of the same. The written statement was filed by the 1 st respondent
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C.R.P.(PD).No.2430 of 2016
on 29.10.2013. The petitioner has not taken any steps immediately before
commencement of trial. According to the petitioner, she came to know about
two sale deeds and partition deed only when those documents were produced
during chief examination of D.W.1. The said contention is contrary to the
facts referred to above. The petitioner has not stated as to why she did not
seeks genuineness of said documents even though the 1st respondent has
mentioned the same in the written statement.
8.Further, the formal defect mentioned by the petitioner is that she has
to implead the mother of the respondents 3 & 4 and 15 other co-sharers of the
properties in Survey No.727. As per Order XXIII Rule (1) & (3) of the Code
of Civil Procedure, permission can be granted by the Court to withdraw the
suit and file a fresh suit on the same cause of action when there is a formal
defect and that suit will fail due to the said formal defect. Leave can be
granted only when Court satisfies that ingredients of Order XXIII Rule (1) &
(3) of the Code of Civil Procedure are complied with. In the judgment relied
on by the learned counsel appearing for the 1st respondent before the Trial
Court reported in 2003 (4) L.W. 453, (Duraikannu and others Vs.
Malayammal), a formal defect as contemplated in Order XXIII Rule (1) & (3)
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C.R.P.(PD).No.2430 of 2016
of the Code of Civil Procedure was formulated. The formal defect mentioned
by the petitioner is not a formal defect as contemplated under Order XXIII
Rule (1) & (3) of the Code of Civil Procedure. Further, the formal defect
alleged by the petitioner can be rectified by impleading necessary parties and
amend the plaint to include all the properties which are liable to be
partitioned. The reason given by the petitioner that impleading all the
necessary parties will take time and therefore, she may be permitted to
withdraw and file a fresh suit is not a valid ground for invoking Order XXIII
of the Code of Civil Procedure. In the year 2013 itself, the petitioner knowing
that she has not impleaded the parties now sought to be impleaded, the
properties to be included are sale deeds and partition deed, she has not taken
any steps to implead and amend the plaint. Further, as rightly pointed out by
the learned counsel appearing for 1st respondent, the petitioner has not sought
for permission to file a fresh suit on the same cause of action after withdrawal.
The learned Judge has properly appreciating the scope of Order XXIII Rule
(1) & (3) of the Code of Civil Procedure and materials placed before him,
dismissed the I.A. by giving cogent and valid reason. There is no error or
irregularity in the order of the learned Judge warranting interference by this
Court.
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C.R.P.(PD).No.2430 of 2016
9.For the above reasons, this Civil Revision Petition is dismissed. The
suit is of the year 2013 and the learned Subordinate Judge, Perundurai is
directed to dispose of the suit, in any event, within a period of six months
from the date of receipt of a copy of this order. Consequently, the connected
Miscellaneous Petition is closed. No costs.
06.12.2021
krk
Index : Yes / No
Internet : Yes / No
To
The learned Subordinate Judge,
Perundurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2430 of 2016
V.M.VELUMANI, J.
krk
C.R.P.(PD).No.2430 of 2016
06.12.2021
https://www.mhc.tn.gov.in/judis
