Madras High Court
Srinivasalu Naidu vs P.K.Balasaraswathy on 29 July, 2021
C.R.P.(NPD)Nos.3931, 3932, 3934 & 3935 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(NPD)Nos.3931, 3932, 3934 & 3935 of 2018
Mukthabai (Deceased)
1. Srinivasalu Naidu
2. R.Lakshmi
3. B.Dharmendran ... Petitioners
in all CRPs
Vs.
P.K.Balasaraswathy ... Respondent
in all CRPs
Prayer in CRP.No.3931 of 2018:- Civil Revision Petition is filed under
Article 227 of the Constitution of India to set aside the fair and decreetal
order dated 20.04.2018 made in I.A.No.14465 of 2017 in O.S.No.313 of
2007 passed by the learned III Assistant Judge, City Civil Court at
Chennai.
Prayer in CRP.No.3932 of 2018:- Civil Revision Petition is filed under
Article 227 of the Constitution of India to set aside the fair and decreetal
order dated 20.04.2018 made in I.A.No.14464 of 2017 in I.A.No.16666
of 2009 in O.S.No.313 of 2007 passed by the learned III Assistant Judge,
City Civil Court at Chennai.
Page 1 of 8
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C.R.P.(NPD)Nos.3931, 3932, 3934 & 3935 of 2018
Prayer in CRP.No.3934 of 2018:- Civil Revision Petition is filed under
Article 227 of the Constitution of India to set aside the fair and decreetal
order dated 20.04.2018 made in I.A.No.14467 of 2017 in O.S.No.313 of
2007 passed by the learned III Assistant Judge, City Civil Court at
Chennai.
Prayer in CRP.No.3935 of 2018:- Civil Revision Petition is filed under
Article 227 of the Constitution of India to set aside the fair and decreetal
order dated 20.04.2018 made in I.A.No.14466 of 2017 in I.A.No.16666
of 2009 in O.S.No.313 of 2007 passed by the learned III Assistant Judge,
City Civil Court at Chennai.
For Petitioners
in all CRPs : Mr.G.Ilangovan
For Respondent
in all CRPs : No appearance
ORDER
These Civil Revision Petitions are directed as against the
fair and decreetal orders dated 20.04.2018 passed by the learned III
Assistant Judge, City Civil Court at Chennai, in I.A.Nos.14465, 14464,
14467 & 14466 of 2017 in O.S.No.313 of 2007 respectively, thereby
dismissing the petitions to implead the petitioners as legal heirs of the
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C.R.P.(NPD)Nos.3931, 3932, 3934 & 3935 of 2018
deceased plaintiff in the preliminary decree and final decree application
and also to amend suit schedule property in the preliminary decree and
final decree application.
2. In all the above Civil Revision Petitions, the petitioners are
the proposed plaintiffs and the respondent is the defendant. The deceased
plaintiff filed the suit for partition in O.S.No.313 of 2007 and the same
was decreed by the judgment and decree dated 10.12.2007. Aggrieved by
the same, the respondent herein filed Appeal Suit in A.S.No.801 of 2010
before this Court and the same was also dismissed by the judgment and
decree dated 13.07.2017. In the mean time, the deceased plaintiff filed
final decree application in I.A.No.16666 of 2009 and the same was
decreed by the final decree dated 27.09.2011.
3. After passing the final decree, the sole plaintiff died leaving
behind the petitioners as her legal heirs. Therefore, the petitioners filed
the petitions to implead themselves as plaintiffs in the preliminary decree
as well as the final decree. They also filed petition to amend the suit
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C.R.P.(NPD)Nos.3931, 3932, 3934 & 3935 of 2018
schedule property to include the survey number and boundaries. The trial
Court dismissed all the petitions as against which the present Civil
Revision Petitions have been filed.
4. It is seen from the records, in the final decree application, an
Advocate Commissioner was appointed and he inspected the suit
property and filed his report stating that the suit property cannot be
dividable, since the suit property is consisting of ground floor plus first
floor. He also suggested that the suit property may be alloted as the first
floor to one party and the ground floor to another party. After passing the
final decree, the original plaintiff died and as such the petitioners being
the legal heirs of the deceased plaintiff, they filed the present
applications to implead themselves as proposed plaintiffs in the
preliminary decree as well as the final decree. The petitioners also stated
that they came to know that the suit property has not been properly
described in the plaint. In the plaint, simply stated the door number and
address of the suit property. On verification, the petitioners found the
survey number and the boundaries and also the measurements. Therefore,
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C.R.P.(NPD)Nos.3931, 3932, 3934 & 3935 of 2018
they filed petition to amend the suit schedule property to include the
survey number and boundaries.
5. However, the Court below dismissed all the applications for
the reason that when the original plaintiff was alive, the final decree was
passed. Therefore, the applications to implead the proposed plaintiffs are
not maintainable. Insofar as the amendment petitions are concerned, the
Court below dismissed the same for the reason that after passing the final
decree, the sole plaintiff died. Therefore, the legal heirs of the sole
plaintiff could not file application to include the description of the
property viz., survey number, extension of the property and boundaries.
6. Admittedly, when the sole plaintiff was alive, the final
decree was passed in I.A.No.16666 of 2009 on 27.09.2011. Thereafter,
the sole plaintiff died on 13.01.2015 leaving behind the petitioners as her
legal heirs. Though the Advocate Commissioner filed his report, for all
purposes the petitioners have to be impleaded as proposed plaintiffs.
There is no dispute in respect of the legal heirship of the deceased
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C.R.P.(NPD)Nos.3931, 3932, 3934 & 3935 of 2018
plaintiff. That apart, the Advocate Commissioner also filed report stating
that the suit property ad measuring 1680.58 sq.ft. Therefore, the
amendment sought for by the petitioners would not cause any prejudice
to the respondent. For all practical purposes, the petitioners ought to have
been impleaded as proposed plaintiffs and the schedule of the property
has also to be amended with survey number and boundaries with proper
extent. Therefore, the orders passed by the Court below are perverse and
liable to be set aside.
7. In view of the above discussion, the orders dated
20.04.2018 passed by the learned III Assistant Judge, City Civil Court at
Chennai, in I.A.Nos.14465, 14464, 14467 & 14466 of 2017 in
O.S.No.313 of 2007 respectively are hereby set aside. The Court below
viz., the learned III Assistant Judge, City Civil Court, Chennai is directed
to implead the petitioners as plaintiffs in the suit in O.S.No.313 of 2007,
and to amend the suit schedule property and proceed further in
accordance with law.
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C.R.P.(NPD)Nos.3931, 3932, 3934 & 3935 of 2018
8. Accordingly, all the Civil Revision Petitions are allowed.
There shall be no order as to costs.
29.07.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
rts
To
1. The III Assistant Judge,
City Civil Court, Chennai.
2. The Section Officer,
V.R. Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD)Nos.3931, 3932, 3934 & 3935 of 2018
G.K.ILANTHIRAIYAN, J.
rts
C.R.P.(NPD)Nos.3931, 3932,
3934 & 3935 of 2018
29.07.2021
https://www.mhc.tn.gov.in/judis/
