Madras High Court
Haridass ... 2Nd Respondent/2Nd ... vs Vasanthi ... ... on 9 December, 2021
CRP (PD) No. 2745 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CRP (PD) No.2745 of 2021
Haridass ... 2nd Respondent/2nd Defendant/Petitioner
Vs
1. Vasanthi ... Petitioner/Plaintiff/1st Respondent
Chokkalingam (Died)
2. Dhanasekar
3. Selvi
4. Chandralekha
5. Illayaraja
6. Selvaraj ... Respondents 3 to 7/Defendants 3 to
7/Respondents 2 to 6
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution
of India against the fair and decreetal order of the Subordinate Judge's Court
at Kallakurichi, dated 26.11.2019 in I.A.No. 116 of 2019 in O.S.No. 382 of
2017.
For Petitioner : Mr. P.Valliyappan
1/7
https://www.mhc.tn.gov.in/judis
CRP (PD) No. 2745 of 2021
ORDER
Challenge in this Revision is to the order of the trial Court
allowing an application in I.A.No. 116 of 2019 seeking an amendment of the
plaint consequent upon the death of the 1st and 8th defendants in O.S.No. 382
of 2017.
2. The suit in O.S.No. 382 of 2017 was filed by the first
respondent herein seeking for partition and separate possession of the
plaintiff's 1/6th share. The plaintiff claims the said share as the daughter of
one Chokkalingam, who has arrayed as the 1st defendant in the suit. The
defendants 2, 3, 4 and 5 were shown to be the sons of the said
Chokkalingam. The 6th defendant Illayaraja, was shown to be sone of
Mannankatti; the 7th defendant is one Selvaraj, son of Seranga Gounder.
One Marimuthu, son of Poomalai was cited as the 8th defendant.
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CRP (PD) No. 2745 of 2021
3. Claiming that the 1st and 8th defendants died pending suit and
the first defendant had left behind the plaintiff and the defendants 2, 3, 4
and 5 as his legal heirs, the plaintiff filed an application seeking amendment
of the plaint to incorporate the word 'deceased' after the description of the 1 st
and 8th defendants. In so far as the first defendant is concerned the plaintiff,
in the affidavit filed in support of the said application, had averred that the
first defendant had died leaving behind the plaintiff herself and the
defendants 2 to 6. As regards the 8th defendant, it is stated that the 8th
defendant was impleaded on an apprehension that he is attempting to
purchase the property and now that the plaintiff learns that there is no sale
in favour of the 8th defendant and the legal heirs of the 8 th defendant were not
required to be made parties to the suit. In effect, the plaintiff has given up
the reliefs against the 8th defendant. This application was opposed
contending that the application for amendment is not maintainable and that,
it is only the plaintiff and the defendants 2, 3, 4 and 5, who are the legal
heirs of the first defendant and not the 6th defendant.
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CRP (PD) No. 2745 of 2021
4. The Trial Court however, considering the nature of the relief
sought for and the prayer in the application which seeks to only add the
word 'deceased' after the name of the 1st and 8th defendants in the short and
long cause titles in the plaint allowed the application overruling the
objection. Hence, this Revision.
5. Mr. P.Valliyappan, learned counsel for the petitioner would
contend that the application under Order VI Rule 17 itself could not be the
proper remedy in terms of the Judgment of the Hon'ble Supreme Court in
AIR 1971 SC 742 [Mahabir Prasad Vs. Jage Ram and Ors.]. A memo
would suffice since there is no question of abatement of the suit as other
legal heirs are already on record.
6. No doubt, the Hon'ble Supreme Court had held that there
would not be any abatement if legal heirs of the parties already on record in
another capacity in the same suit of proceedings. But at the same time, to
bring it to the notice of the Court that a party has died an amendment has to
be carried out in the plaint. The death of the party has to be recorded in
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CRP (PD) No. 2745 of 2021
some form in the plaint, which in my opinion can be done only by way of
amendment and not otherwise.
7. The present application can be treated as a consequence of the
death of a party which does not result in an abatement. If death of a party
results in abatement, applications would be filed under Order 22 which will
result in automatic incorporation of the details in the plaint. Once it is held
that no application under Order 22 is necessary in view of the fact that there
is no abatement, then an application for amendment would be the only
recourse to record the factum of death in the pleadings. If such factum of
death is not recorded in the pleadings, it may go unnoticed at a later point of
time.
8. I am therefore of the opinion that no interference is called for
with the order of the learned Special Judge, Kallakurichi except to state that
the very statement in the affidavit that the 6th defendant is also the legal heirs
of the first defendant will not confer any right on the 6th defendant over the
estate of the first defendant.
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CRP (PD) No. 2745 of 2021
9. In view of the above, this Civil Revision Petition is disposed of.
No costs. Consequently, connected Miscellaneous Petition is closed. No
costs.
09.12.2021
vs
Index: Yes/No
Speaking order / Non speaking order
To:
1. Sub Court, Kallakurichi
2.The Section Officer,
VR Section,
Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
CRP (PD) No. 2745 of 2021
R.SUBRAMANIAN, J.
Vsg
CRP (PD) No.2745 of 2021
09.12.2021
https://www.mhc.tn.gov.in/judis
