Madras High Court
Saravanakumar vs Karthigaimala on 7 December, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.12.2021
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) Nos.834 and 835 of 2021
and
C.M.P.(MD) No.4482 of 2021
Saravanakumar
... Petitioner in both C.R.Ps.,
vs.
Karthigaimala
... Respondent in both C.R.Ps.,
COMMON PRAYER:- This Petitions are filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated 06.03.2021
passed in I.A.Nos.306 and 305 of 2020 in O.S.No.107 of 2015 on the file of the
5th Additional District Judge, Madurai.
For Petitioner
in both C.R.Ps., : Mr.P.Subbiah Senior Counsel for
Mrs.P.Jessi Jeeva Priya
For Respondent
in both C.R.Ps., : Mr.A.V.Arun
COMMON ORDER
The defendant is the revision petitioner in both the Civil Revision
Petitions. I.A.No.305 of 2020 in O.S.No.107 of 2015 on the file of the learned
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5th Additional District Judge, Madurai, was filed by the plaintiff to reopen the
case, which was posted on 03.11.2020 for the reply arguments, after the
conclusion of trial. I.A.No.306 of 2020 in O.S.No.107 of 2015 was also filed by
the plaintiff for amending the plaint with reference to the description of
properties relating to the 1st item of the property by correcting T.S.No.867/142
as T.S.No.867/1 & 2 and to reduce the extent of the 5th and 6th items of
property as 5 1/2 cents have been already disposed of. The consequential
amendment with reference to the value of the suit was also sought for.
2.The brief facts are as follows:-
3.The plaintiff had filed a suit O.S.No.107 of 2015 on the file of the
learned 5th Additional District Judge, Madurai, seeking partition of the
plaintiff's half share in the suit schedule property, injunction restraining the
defendant from interfering with the plaintiff's peaceful possession and
enjoyment of the 3rd item of property and an injunction restraining the
defendant from mortgaging, charging, gifting, selling, entering into an
agreement of sale and leasing the suit 1st item of property.
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4.The plaintiff's case is that the property belonged to one Pitchaipillai,
who had two sons, Gurusamy and Kutti @ Thirumalaichamy. Gurusamy had
one son, G.T.Pandian and Kutti @ Thirumalaichamy had one son, Pitchaipillai.
Pandiammal was the wife of Pitchaipillai. The plaintiff and the defendant are
their children.
5.The case of the plaintiff is that the properties are the ancestral
properties of the plaintiff and the defendant. After the death of their father, the
plaintiff's mother, Pandiammal, the plaintiff and the defendant were enjoying
the properties without partitioning the same. On 21.11.2012, the plaintiff's
mother passed away. Therefore, the plaintiff and the defendant each became
entitled to a half share in the suit schedule properties. In the 3rd item of
property, there were two houses. One of the houses was rented out by the
plaintiff to one Karthikeyan and the other to one Senthilkumar on monthly rent.
The rents have been collected by the plaintiff. The 1st item of property is
vacant. In items 2 and 4 to 6, the defendant has inducted 13 tenants and he has
been enjoying the rent.
6.The plaintiff would submit that for the last two years, the defendant has
not been conducting himself properly and was claiming an exclusive right to the
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same. Therefore, the plaintiff has sought for partition. The plaintiff would
submit that he has also entitled to the rent being received by the defendant. A
notice was issued on 20.04.2015 by the plaintiff to the tenants asking them to
pay the half share to her. Notice was also sent to the defendant calling for
partition. However, on 05.05.2015, the defendant had sent a reply containing
false allegations. Since the defendant was not cooperating, the plaintiff had
come forward with the suit. The defendant had filed a written statement denying
the above statements.
7.The parties had gone to trial on 28.08.2019, the evidence was ultimately
closed on 02.01.2020, the arguments on either side were completed and the
matter was posted on 03.11.2020 for the reply arguments of the plaintiff. At this
juncture, the plaintiff had filed two interlocutory applications to reopen the case
and to amend the plaint, which have been ordered. It is these orders that are the
subject matter of challenge in the above Civil Revision Petitions.
8.Mr.P.Subbiah, learned Senior Counsel for Mrs.P.Jessi Jeeva Priya,
learned counsel appearing for the petitioner would submit that perusal of the
application for amendment would clearly demonstrate that no reason
whatsoever has been provided in the affidavit filed in support of the amendment
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application for the delay in taking out the application for amendment. The
learned Senior Counsel would further submit that as regards the amendment
with reference to items 5 and 6, the said amendment is not an amendment, but
an abandonment of claim in respect of 5th and 6th items of properties, which
cannot be done by way of an Order VI Rule 17 application, but can only be
done through an application under the provisions of Order XXIII Rule 3 of the
Code of Civil Procedure. Therefore, the orders of the learned Judge without
taking into consideration of the above provisions are liable to be set aside. The
learned Senior Counsel would attack the reopen petition by contending that a
perusal of the affidavit filed in support of the petition would set out that the
reopen was necessary in order to implead the third parties to the proceedings.
9.The learned Senior Counsel would rely on the judgments of the
Hon'ble Supreme Court in the case of Revajeetu Builders and Developers Vs.
Narayanaswamy and Sons and others reported in (2009) 10 Supreme Court
Cases 84 and the case of M.Revanna Vs. Anjanamma (dead) by legal
representatives and others reported in (2019) 4 Supreme Court Cases 332. He
would submit that the order passed by the learned Judge is a mechanical one,
for which proposition he would rely on the judgment of the Hon'ble Supreme
Court in the case of N.Murali Vs. International Ocean Institute, represented
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by its Executive Director, IIT Campus, Chennai and others reported in (2018)
5 CTC 315. He would therefore submit that both the impugned orders deserve
to be set aside.
10.Per contra, Mr.A.V.Arun, learned counsel appearing on behalf of the
respondent/plaintiff would contend that the amendment does not seek to
introduce any new case. It is only a typographical error and further, the plaintiff
has not attempted to increase the extent of the suit properties. He would further
submit that along with the two applications, the implead application had also
been filed and that the affidavit filed in support of the reopen petition would
make reference to the implead petition. He would further submit that the
amendment was necessitated only on account of the oral evidence of P.W1. He
would submit that in the written statement the defendant had taken a stand that
the predecessor in title of the defendant had sold out large chunks of land and
retained only a smaller extent. Despite being aware of the sale, the plaintiff has
included even these properties, which had been sold out.
11.P.W1 in his cross-examination would submit that Kutti @
Thirumalaichamy had three wives and the son of the third wife of
Thirumalaichamy, Thayammal, is the father of P.W1, Pitchaipillai. The 1st and
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2nd wives of Kutti @ Thirumalaichamy had only daughters. Their names have
not been mentioned in the genealogy. P.W1 has admitted that they have not been
impleaded as parties. He had in fact gone on to state that these parties have to
take steps to work out their remedies and this was also the reason for filing the
reopen petition to implead the parties.
12.The learned counsel for the respondent in support of his contentions
would rely on the following judgments:-
i) The judgments of Hon'ble Supreme Court in the case of T.N.Alloy
Foundry Co.Ltd., Vs. T.N.Electricity Board and others reported in (2004) 3
Supreme Court Cases 392, the case of Varun Pahwa Vs. Renu Chaudhary
reported in (2019) 15 SCC 628 and the case of South Konkan Distilleries and
another Vs. Prabhakar Gajanan Nair and others reported in AIR 2009
Supreme Court 1177.
ii) The order of this Court in the case of Ponnusamy (died), Settu @
Krishnasamy Vs. Arumugam (died), Nallappan and others reported in 2019
(6) CTC 628.
13.Though extensive arguments had been advanced by the parties, on
overall consideration of the above Civil Revision Petitions, it is seen that
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I.A.No.306 of 2020 is filed to amend the description of properties, which
appears to be a typographical error and the amendment is not likely to cause any
prejudice to the defendant or prolong the litigation. Therefore, the order passed
in I.A.No.306 of 2020 in O.S.No.107 of 2015 on the file of the learned 5th
Additional District Judge, Madurai dated 06.03.2021 is hereby confirmed and
C.R.P.(MD) No.834 of 2021 stands dismissed.
14.As regards I.A.No.305 of 2020 in O.S.No.107 of 2015, a perusal of the
affidavit would clearly show that the petition has been filed only to implead the
parties to the suit. The petition to implead the parties has not been taken up for
consideration by the learned 5th Additional District Judge, Madurai and steps
have not been taken in this regard by the respondent as well.
15.The defendant in his written statement has raised a defense that proper
and necessary parties have not been impleaded in the suit and therefore, the suit
has to be set aside. This written statement had been filed on 03.11.2015 and no
steps have been taken to rectify the said defect till the arguments had been
concluded in the suit. Further, the suit is at the stage of reply arguments ie., the
suit has reached its fag end. At this juncture, applications of this nature would
only lead to protracting the proceedings and this Court should not be a party to
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the same. Consequently, the order passed in I.A.No.305 of 2020 in O.S.No.107
of 2015 on the file of the learned 5th Additional District Judge, Madurai, dated
06.03.2021 is set aside and C.R.P.(MD) No.835 of 2021 is allowed. The learned
5th Additional District Judge, Madurai is directed to dispose of the proceedings
within a period of one month from the date of receipt of a copy of this order.
16.In fine, C.R.P.(MD) No.834 of 2021 stands dismissed and C.R.P.(MD)
No.835 of 2021 stands allowed. No costs. Consequently, connected
miscellaneous petition is closed.
Index : Yes / No 07.12.2021
Internet : Yes / No
mm
To
The 5th Additional District Judge,
Madurai.
https://www.mhc.tn.gov.in/judis
P.T.ASHA, J.
mm
C.R.P.(MD) Nos.834 and 835 of 2021
07.12.2021
https://www.mhc.tn.gov.in/judis
