Madras High Court
P.Ramasamy vs Kaliammal on 5 January, 2021
CRP.PD.No.1741 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.01.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.1741 of 2021 and
MP.No.1 of 2015
P.Ramasamy ..Petitioner
Vs.
1.Kaliammal
2.P.Palanisamy(died)
3.P.Kuppathal
4.R.Palanisamy(died)
5.P.Ravichandran
6.Jothimani
7.Kalimuthu
8.R.Saraswathi
9.D.Sumathi
10.K.Muthusamy
11.Deivathal ..Respondents
PRAYER:
The Civil Revision Petition is filed under Article 227 of the
Constitution of India praying to set aside the fair and decreetal order
dated 03.03.2015 made in IA.No.158 of 2015 in OS.No.220 of 2004
on the file of the District Munsif Court, Dharapuram, Tirupur District
and allow this Civil Revision Petitoin.
For Petitioner : Mr.A.K.Sridharan
For Respondents
For R1 : Mr.S.Saravanan
R2 & R4 : Died
R3,5 to 11 : Notice served
1/8
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CRP.PD.No.1741 of 2015
ORDER
This Civil Revision Petition has been filed to set aside the
fair and decreetal order dated 03.03.2015 made in IA.No.158 of 2015
in OS.No.220 of 2004 on the file of the District Munsif Court,
Dharapuram, Tirupur District.
2. The first respondent filed suit for partition in respect of the
suit schedule property. After commencement of trial, the petitioner /
plaintiff filed petition for amendment, which was allowed. Aggrieved
by the same, the first defendant / first respondent preferred this Civil
Revision Petition.
3. The learned counsel for the petitioner would submit that
the suit filed by the first respondent is for partition. Thereafter he was
examined as PW1 and the matter was posted for cross examination of
PW1. While pending the suit, the second defendant died. Thereafter,
the first respondent / plaintiff did not take any step to bring the legal
representatives of the deceased second defendant on record. Instead
of that, the first respondent filed petition for amendment to delete the
second respondent from the plaint, since the second defendant died in
the year 2008 and the third defendant executed release deed in favour
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CRP.PD.No.1741 of 2015
of the first defendant on 05.02.1996. Therefore, the second defendant
is not a necessary party to the suit even at the time of filing of the
suit. As such the first respondent / plaintiff have not impleaded the
legal heirs of the second defendant. He further submitted that no such
release deed is their and the second defendant never executed any
release deed dated 05.02.1996 in favour of the first defendant.
Further, admittedly the second defendant died in the year 2008 itself.
Thereafter, the plaintiff did not take any step to bring the legal
representatives of the second defendant. Therefore, the suit itself is
bad for non joinder of necessary parties, since the suit is for partition
and as such the plaintiff should have added all the parties of the family
for partition. He also submitted that when the trial commenced, the
first respondent / plaintiff cannot amend the plaint without sufficient
cause. In support of his contention, he relied upon the judgment in
the case of Shanmuga Nadar Vs. S.Kamala reported in 2014 (3)
LW 121, wherein it is held as follows:
“CPC Order 6 Rule 17 – Amendment of the trial
commenced whether can be allowed – Application to
restrict claim with lispect to area sought, title to
property Held: cannot be allowed meaning of “Any
Stage” - It cannot be applied as proviso comes in.”
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CRP.PD.No.1741 of 2015
4. The learned counsel for the first respondent / plaintiff
submitted that the plaintiff was aged about 82 years at the time of
filing of petition for amendment. As such, she was unable to trace out
the release deed dated 05.02.1996. While pending the suit, she found
the fact that the second defendant released his share in the suit
schedule property in favour of the first defendant herein. Since the
second defendant died in the year 2008, the plaintiff has no need to
implead the legal heirs of the deceased second defendant, since
already he executed release deed in favour of his share in favour of
the first defendant herein. Therefore, the first respondent herein
stated valid reason for amendment of the plaint and no prejudice
would be caused to the petitioner herein. In fact, the trial court
categorically recorded the reason for allowing the petition. Further the
petitioner never denied the fact that the second defendant executed
release deed dated 05.02.1996 in favour of the first defendant.
Therefore, there is absolutely no prejudice would be caused to the first
defendant herein for the amendment sought for by the plaintiff.
5. Heard, Mr.A.K.Sridharan, the learned counsel for the
petitioner and Mr.S.Saravanan, the learned counsel for the first
respondent.
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CRP.PD.No.1741 of 2015
6. The first respondent filed suit for partition. After
commencement of trial, the first respondent herein filed petition for
amendment to amend the plaint as follows:
(i) To insert the new para as '3 (a).The Plaintiff submit
that the second defendant died in the year 2008. The second
defendant and his mother 3rd defendant have executed a
release deed in favour of first defendant on 05.02.1996. So
the second defendant is not necessary party to the suit even
at the time filing the suit. So the plaintiff have not implead
the legal heirs of the second defendant' after the para 3 in
page 3 in the plaint.
(ii) To insert as 'But the 2nd and 3rd defendants are
executed the release deed of their share in the suit property
in favour of 1st defendant on 05.02.1996. So the first
defendant is only entitle the ¼ share in the suit property'. in
5th line before the word 'defendant' in para 4 in page 3 in the
amended plaint.
(iii) To insert as 'against the defendant 1, and
defendants 4 to 11' in page 5 in para 11 in second line after
the word 'decree' in amended plaint.
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CRP.PD.No.1741 of 2015
(iv) To insert as 'and 4' in para 11(b) in 1 st line in page
5 of amended plaint after the word 'defendants 1'.
(v) To delete the word 'to 10' in end of the line in para
11(c ) in page 5 in amended plaint insert as 'and defendants
4 to 11' after the word 'defendants 1'.
According to the first respondent herein, the third defendant executed
release deed in favour of the first defendant by the deed dated
05.02.1996. Thereafter he died in the year 2008. Therefore, there is
absolutely no necessity for the first respondent to implead the legal
heirs of the second defendant in the suit. Since the share of the
second defendant was already released in favour of the first
defendant, the second defendant is not a necessary party to the suit
for partition. Further, the plaintiff is aged about 82 years at the time
of filing the petition for amendment and as such she was unable to
trace out the release deed executed by the second defendant in favour
of the first defendant dated 05.02.1996.
7. That apart, on perusal of the counter filed by the petitioner
herein, revealed that the first defendant never denied the release deed
executed by the second defendant in favour of him. As rightly
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CRP.PD.No.1741 of 2015
observed by the trial court that if actually there was no such release
deed in favour of the first defendant dated 05.02.1996, he would have
naturally denied it as false. If he had denied it as false, there is no
necessity for the plaintiff to amend the plaint and he should
necessarily implead the legal representatives of the deceased second
defendant. But the petitioner / first defendant neither admitted nor
denied the alleged release deed dated 05.02.1996. Therefore, the
judgment relied upon by the learned counsel for the petitioner would
not help his case.
8. In view of the above discussion, this Court does not find
any irregularity or infirmity in the order passed by the court below.
Accordingly, this Civil Revision Petition is dismissed. Consequently,
connected miscellaneous petition is closed. No order as to costs.
05.01.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
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CRP.PD.No.1741 of 2015
G.K.ILANTHIRAIYAN,J.
lok
To
The District Munsif Court,
Dharapuram, Tirupur District
CRP.PD.No.1741 of 2015
05.01.2021
https://www.mhc.tn.gov.in/judis/
