Madras High Court
M.Pandiyammal vs )B.Pandian on 27 January, 2021
CRP(MD)Nos.1604 and 1605 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.01.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRP(MD)Nos.1604 and 1605 of 2019
and
CMP(MD)Nos.8447 and 8448 of 2019
M.Pandiyammal ... Petitioner in both CRPs
vs.
1)B.Pandian
2)P.Muralikannan
3)P.Chokkanathan
4)D.Bhavani
5)N.Krishnapriya ... Respondents 1 to 5 in both CRPs
6)A.Sundaravel ... 6th Respondent in CRP.1605/19
Petitions filed under Article 227 of the Constitution of India,
against the order and decree made in I.A.Nos.568 and 569 of 2019 in
O.S.No.139 of 2012 dated 15.07.2019 on the file of the 4 th Additional
District Judge, Madurai.
For Petitioner(both CRPs) : Mr.M.Thirunavukkarasu
For Respondents(both CRPs) : Mr.S.A.Ajmal Khan
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CRP(MD)Nos.1604 and 1605 of 2019
COMMON ORDER
Aggrieved by the dismissal of the amendment petition and
impleading petition, these revision petitions have been filed by the
revision petitioner/plaintiff.
2.The revision petitioner is the plaintiff in the suit in O.S.No.
139/2012 which has been filed for partition of the suit properties.
According to the petitioner, at the time of filing the suit, she omitted to
add one more item of valuable property as 4th item of property described
in the release deed dated 10.08.2007 and the said omission was not
wilful. According to her, the property is a valuable house site and
therefore she has filed I.A.No.568/2019 to amend the suit schedule to
include the said omitted property in the original plaint and also filed
I.A.No.569/2019 to implead the purchaser of the above said property, as
a party defendant in the suit.
3.A counter affidavit has been filed by the 1st defendant/1st
respondent herein, wherein, it has been specifically stated that the
revision petitioner along with her father Packiam and the 1st defendant
jointly executed a sale deed on 02.03.2000 in favour of one Albert
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CRP(MD)Nos.1604 and 1605 of 2019
Vijayarathinam in respect of a portion of the property in Vilankudi
Village in S.No.45/2C1 measuring to an extent of 3045¾ sq.ft house site.
Subsequently, the 1st defendant got the petition mentioned property
through the release deed dated 10.08.2007 executed by the petitioner for
due consideration, but suppressing the said release deed dated
10.08.2007, after expiry of more than 4 years therefrom, the revision
petitioner issued a legal notice on 28.06.2012 demanding partition of the
properties. On receipt of the said notice, the 1st defendant issued a reply
notice dated 12.07.2012 stating the facts in respect of the release deed
executed in favour of the 1st defendant. The revision petitioner has
clearly stated in the plaint that she was shocked and surprised on seeing
the release deed which averment by itself would prove that the revision
petitioner was aware of the release deed and all the details about the
ancestral properties.
4.He would further state that the petitioner has already filed an
application in I.A.No.207/2013 to implead the respondents 2 to 5 herein
as defendants in the main suit which was dismissed, against which, the
petitioner filed CRP.No.878/2014 before this Court and the same was
allowed with a direction to dispose of the main suit within a period of six
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CRP(MD)Nos.1604 and 1605 of 2019
months and thereafter, both sides evidences have been recorded and
documents were marked and now the main suit is posted for arguments
and in spite of number of adjournments granted for arguing the matter,
now the revision peitioner has come up with the present applications. In
the earlier occasion when the suit was posted for arguments, the
petitioner filed I.A.No.1101/2018 seeking further examination of PW1
and the same was allowed and after examination of PW1, now again
when the case has been posted for arguments, the petitioner has come out
with the present petitions when there is a direction by this Court to
dispose of the suit within a period of six months. The amendment
petition has been filed to include the property which was sold to one
Sundaravel/6th respondent herein and the said sale deed is a legally valid
document and the petitioner has got no right to claim the same. The
Court below after hearing both sides, dismissed the amendment petition
and impleading petition, against which, the present revision petitions
have been filed.
5.The learned counsel for the petitioner would state that in a suit
for partition, all the properties have to be included and if any property is
left out, then the suit will be dismissed on the ground of partial partition
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CRP(MD)Nos.1604 and 1605 of 2019
and therefore, the Court below ought to have allowed the present
applications to avoid multiplicity of proceedings and the proposed
amendment will not alter the character of the suit and no prejudice would
be caused to the other side by virtue of such amendment and
impleadment. He would further state that in a suit for partition,
opportunity should be given to the parties concerned to implead
necessary parties and at any stage of the proceedings, necessary parties
could be added and he would rely on a decision reported in 2009 (3)
CTC 760, Balamani and another vs. S.Balasundaram.
6.The learned counsel for the respondents would state that the
petitioner was well aware of the property sought to be included, even
before filing of the present suit for partition and the Court below finding
that when the suit was posted for arguments, the petitioner by filing
petition after petition without making any arguments, has prolonged the
case, dismissed the present petitions. Thus, he would pray that the
impugned orders do not require interference by this Court.
7.Heard the learned counsel for the petitioner as well as the
respondents.
8.Admittedly, the revision petitioner is the sister of the 1st
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CRP(MD)Nos.1604 and 1605 of 2019
respondent/1st defendant and the suit has been filed for partition and
separate possession of the suit properties. In the suit, both side witnesses
were examined and documents were marked and now the suit has been
posted for arguments. At this stage, the revision petitioner has filed the
present amendment petition to include the property finds place in the
release deed dated 10.08.2007 and impleading petition to implead the
purchaser of the said property as party defendant in the suit.
9.Perusal of record shows that the said release deed dated
10.08.2007 was marked as Ex.B1 by the defendants and the revision
petitioner/plaintiff denied her signature in Ex.B1 and filed petition in
I.A.No.207/2013 to implead the respondents 2 to 5 herein as party
defendants which was dismissed by this Court on 18.02.2014, against
which, CRP.No.878/2014 was filed and in that CRP, it was specifically
contended that the petitioner has been filing petition after petition only to
prolong the case and this Court has directed the Court below to dispose
of the main suit within a period of six months, but thereafter, the
petitioner disputing her signature in the release deed, filed I.A.Nos.458
and 653/2016 which were allowed on 07.11.2016 and the documents
were subjected for comparision of the petitioiner's signature by the
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CRP(MD)Nos.1604 and 1605 of 2019
officials of the Forensic Department. Thereafter, after completion of
both sides evidence, when the suit was again posted for arguments on
18.12.2018, the petitioner filed I.A.No.1100/2018 to recall the plaintiff
for further examination and another I.A.No.1101/2018 to reopen the
evidence and the same were allowed on 01.03.2019 and after that, now
the present petitions have been filed for amendment of the plaint and to
implead the 6th respondent who is stated to have purchasd the property
based on the release deed for valid consideration. The Court below
found from the records that the property which the petitioner sought to
include in the suit schedule, is the property finds place in the release deed
and the petitioner is aware of the existence of the said property even
before filing of the suit and therefore, when she has filed the partition
suit itself, she ought to have included that property also for partition.
10.From the above discussions, it is very clear that the entire case
revolves around the release deed dated 10.08.2007 and the petitioner is
fully aware of the release deed and there is no explanation as to why the
property sought to be included in the suit schedule, has not been included
for partition at the time of filing of the partition suit and when the case
has been posted for arguments, the petitioner has filed the present
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CRP(MD)Nos.1604 and 1605 of 2019
petitions. Though the learned counsel for the petitioner would rely on
the judgment reported in 2009 (3) CTC 760, and would state that
impleadement of necessary parties in a partition suit can be allowed at
any stage of the proceedings, here, in the present case, the property
sought to be included in the suit schedule finds place in the release deed
and the said release deed has been marked as Ex.B1 and the petitioner
has denied her signature therein and disputing her signature in the release
deed, she filed I.A.Nos.458 and 653/2016 which were allowed on
07.11.2016 and thereafter, again filed petitions to reopen and recall PW1
which were also allowed and thereafter in 2019, have chosen to file the
present amendment petition and impleading petition stating that due to
inadvertent mistake, she omitted to add one more item of valuable
property in the suit schedule and she came to know about the said
omission only in 2019. In my opinion, the said stand of the petitioner
does not reflect bona fide and therefore, the judgment relied on by the
petitioner is not applicable to the present case. In the present case, the
matter has been dragged on by filing number of petitions one after
another and the present petitions have been filed only to harass the
respondents/defendants and to prolong the proceedings and the learned
Judge considering the entire aspect of the case and the entire events
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CRP(MD)Nos.1604 and 1605 of 2019
which had happened in the above suit, has dismissed the applications
where I do not find any infirmity.
11.Accordingly, these Civil Revision Petitions are dismissed. No
costs. Consequently, connected miscellaneous petitions are closed.
Index :Yes/No 27.01.2021
Internet:Yes/No
bala
NOTE: In view of the present lock down owing to COVID-19 pandemic,
a web copy of the order may be utilized for official purposes, but,
ensuring that the copy of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant concerned.
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CRP(MD)Nos.1604 and 1605 of 2019
J.NISHA BANU, J.
bala
To
The 4th Additional District Judge,
Madurai.
COMMONORDER MADE IN
CRP(MD)Nos.1604 and 1605 of 2019
DATED : 27.01.2021
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