Madras High Court

Sarasu vs Kunjammal on 29 June, 2021

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                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATE: 29.6.2021.

                                                      CORAM

                                   THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA

                                            C.R.P. (NPD) No.3425 of 2017
                                                         and
                                               C.M.P.No.15937 of 2017

                     1.   Sarasu
                     2.   Selvi
                     3.   Chandrasekaran
                     4.   Easwari                                          Petitioners

                                     vs.

                     Kandasamy Gounder (Died)
                     Ammasi @ Muthu Gounder (Died)
                     Marappan (Died)
                     Gurusamy (Died)

                     1.   Kunjammal
                     2.   Nagarajan
                     3.   Pavulraj
                     4.   Annapoorani
                     5.   Kunjammal @ Nallammal
                     6.   Kesavan
                     7.   Rani
                     8.   Valarmathi

                     Vellayee (Died)
                     Muthusamy (Died)

                     9. Pappayammal                                        Respondents


                          Civil Revision Petition filed under Section 115 of the Code of Civil
                     Procedure against the Fair and Decreetal order dated 3.1.2016 passed




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                     in I.A.No.1495 of 2016 in I.A.No.374 of 2015 in O.S.No.327 of 1988
                     on the file of the District Munsif, Sankari.

                               For Petitioner    : Mr.P.Valliappan

                               For RR 1, 2 & 9   : No appearance.
                               For RR 3 to 8     : Mr.N.Manokaran

                                                         ORDER

The revision has been filed against the Fair and Decreetal order

dated 3.1.2016 passed in I.A.No.1495 of 2016 in I.A.No.374 of 2015

in O.S.No.327 of 1988 on the file of the District Munsif, Sankari.

2. The said Interlocutory Application in I.A.No.1495 of 2916 has

been filed by the petitioner/plaintiff to amend the petition in

I.A.No.374 of 2015 to the following effect:-

"After the description of property add "National

Highways Authority of India Ltd. acquired 4100

sq.meters of land in S.No.175/1 out of the total

extent of 2.81 acres for formation of the four

road. After acquisition, the Revenue Authorities

subdivided the acquisition lands as 175/1A and

175/1B1 and the remaining lands in S.No.175/1

as 175/1B2 for the extent 0.72.5 Hectares i.e.,

suit property. The National Highways Authority

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of India Limited after acquisition closed the well,

Rhulaies, Uthies, Varies and the Vaikkals of the

above said well and Raja Vaikkal and the pathway

and the cart track situated in old S.No.175/1."

3. The Trial Court had allowed the amendment against which the

present revision has been filed.

4. The crux of the submissions made by the learned counsel

appearing for the petitioner is as under:-

(i) The suit in O.S.No.327 of 1988 had been filed for partition

and separate possession of the suit property wherein a preliminary

decree was made by the Trial Court on 28.2.1991 and after passing of

the preliminary decree, the property of an extent of 4100 sq.meters in

Survey No.175/1 out of the total extent of 2.81 acres of land was

acquired for the formation of four road by the National Highways

Authority of India. An Award was passed on 17.10.2007. Against the

preliminary decree, first appeal was filed by the legal heirs of the

second defendant and the it was taken on file as A.S.No.16 of 2007 on

the file of the Sub Court, Sankari and ultimately, it came to be

dismissed on 19.9.2013. Against the judgment and decree in the first

appeal, the legal heirs of the second defendant filed Second Appeal in

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S.A.No.128 of 2014 and the Second Appeal was dismissed on

4.2.2015. In the meanwhile, final decree proceedings were initiated.

(ii) The National Highways Authority of India, after the

acquisition proceedings, closed the well, Rhulaies, Uthies, Varies and

the Vaikkals of the above said well and Raja Vaikkal and the pathway

and the cart track situated in old S.No.175/1 seven years prior to the

filing of the final decree proceedings.

(iii) The plaintiffs, who were well aware of that land acquisition

proceedings, failed to mention it in the petition at the time of initiating

final decree proceedings. The plaintiffs have, with ulterior motive, filed

the final decree petition suppressing these vital facts. Further, the

revision petitioners, as early as on 11.12.2015, filed a counter

denying about the particulars in the description of property and have

specifically pleaded that the final decree petition is not maintainable.

Inspite of the specific objection made by the revision petitioners, the

respondents, instead of taking steps to carry out necessary correction,

proceeded with the enquiry and strangely, when the case was posted

for further evidence on the side of the respondents, the respondents

filed the amendment petition only on 7.10.2016 without any valid

reason. The respondents were not diligent enough and they wilfully

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altered the description of the property at the time of filing the final

decree petition and the Trial Court, without looking into those aspects,

had allowed the petition and no finding has been made with regard to

lack of diligence on the part of the respondents.

5. Per contra, Mr.N.Manokaran, learned counsel appearing for

the respondents/plaintiffs would submit that the revision petitioners

are rustic villagers and due to lack of legal knowledge, and proper

advice, and due to inadvertence, have failed to file the petition without

disclosing about the acquisition of properties. He would submit that by

this amendment, no prejudice would be caused to the revision

petitioners and that the Trial Court, finding that by the amendment,

the nature of the proceedings will not be altered and also that no

prejudice will be caused to the parties, had allowed the petition. He

would further submit that though there is a delay in seeking such

amendment, it is not intentional or wilful and only due to lack of legal

knowledge the delay had occurred and he would submit that by the

amendment, no prejudice would be caused to the petitioners.

6. The learned counsel appearing for the respondents would

further submit that the rules of procedures are handmaid of justice and

cannot defeat the substantive rights of the parties and therefore,

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plaintiffs cannot be allowed to suffer for the lack of legal knowledge

and lack of legal advice. He would also submit that the civil courts are

existing only for rendering justice and not for denial of justice on

technical grounds and therefore, the order passed by the court below

in allowing the amendment holds goods. In support of his contention,

he relied upon the recent decision in VARUN PAHWA V. RENU

CHAUDHARY ((2019) 15 SCC 628) and JAYARAJ v.

CHOCKALINGAM CHETTIAR (2015 (3) MWN (Civil 88).

7. The learned counsel for the respondents would further

submit that there had been serious lapses on the part of the

respondents/plaintiffs and therefore, the amendment cannot be

allowed.

8. Heard the learned counsel appearing for the parties and

perused the materials available on record.

9. The issue to be resolved is whether an amendment sought for

by the plaintiffs at the stage of final decree proceedings can be

permitted. The objection made on the side of the revision petitioners

appear to be only a technical one viz., that it is a belated one. The

indulgence sought for by the plaintiffs is on the ground of lack of legal

knowledge, advice and inadvertence and they being poor rustic

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villagers.

10. In a recent judgment in VARUN PAHWA V. RENU

CHAUDHARY ((2019) 15 SCC 628), the Hon'ble Apex Court, while

dealing with the plea for amendment of plaint to rectify an inadvertent

procedural mistake by advocate in describing the parties in the cause

title of suit/memo of parties, has held as under:-

"... The rules of procedure are handmaid of justice and

cannot defeat the substantive rights of the parties. It

is well settled that amendment in the pleadings cannot

be refused merely because of some mistake,

negligence, inadvertence or even infraction of the

rules of procedure. The court always gives leave to

amend the pleadings even if a party is negligent or

careless as the power to grant amendment of the

pleadings is intended to serve the ends of justice and

is not governed by any such narrow or technical

limitations."

11. In JAYARAJ v. CHOCKALINGAM CHETTIAR (2015 (3)

MWN (Civil 88), wherein a Judgment Debtor sought to incorporate a

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prayer for attachment and sale of the Judgment Debtor's property in

the Execution Petition filed for arrest of Judgment Debtor, this court

has held as under:-

"13. The Code of Civil Procedure, 1908 governs the

proceedings in Civil litigations. The procedure is

handmaid. The procedural provisions should assist

the parties to enjoy the fruits of the Decree. The

Civil Courts are existing only for rendering justice

and not for denial of justice on technical grounds."

12. The amendment sought for by the plaintiff is in respect of

schedule of property as a consequence of the acquisition of a portion

of the suit property by the National Highways Authority of India

subsequent to the preliminary decree. Such an amendment is sought

for at the final decree proceedings initiated by them. The main

objection raised by the revision petitioners is that though the plaintiffs

were well aware of such acquisition proceedings and the award being

passed seven year prior to the filing of the final decree petition, they

have wilfully skipped such details while the plaintiffs claim that it is due

to lack of legal knowledge and inadvertence.

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13. A perusal of the order passed by the court below would show