Madras High Court
Murugayee vs Perumayee on 16 November, 2021
C.R.P(MD) No.201 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.11.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(MD)No.201 of 2021
and
C.M.P(MD) No.1213 of 2021
Murugayee ... Petitioner
Vs.
1.Perumayee
2.Muniyammal
3.Palaniammal
4.Ilanjiyam
5.Pothumani ... Respondents
PRAYER:- Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure, to set aside the fair and decreetal order made in I.A.No.
188 of 2020 in O.S.No.100 of 2002 on the file of the Principal District
Munsif, Vedasanthur, Dindigul District, dated 04.12.2020 and allow this
civil revision petition.
For Petitioner : Mr.S.Gokulraj
For R1 : No appearance
For R2 : Mr.B.Azhagesh
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C.R.P(MD) No.201 of 2021
ORDER
The petitioner/first plaintiff is before this Court challenging the
order passed by the learned Principal District Munsif, Vedasanthur,
dismissing the application filed by the plaintiffs for amending the plaint
to include the second item of the properties and to declare the sale deed
dated 03.07.2000 as null and void.
2.The facts in brief preceding the filing of this petition are as
follows:-
(i) The plaintiff had filed a suit in O.S.No.100 of 2000 on the file
of the learned Principal District Munsif, Vedasanthur, for partition of the
plaintiffs 4/5 share in the suit schedule property. The suit schedule
property consisted of one item namely 0.70 cents in survey No. 221/2 of
Vedukampatti Village, Vedasanthur Taluk.
(ii)The case of the plaintiffs is that the said property was the
ancestral property of one Palaniyappakonar, the father of the plaintiffs
and the defendants. The suit was decreed by judgment and decree dated
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C.R.P(MD) No.201 of 2021
17.08.2010 by the learned District Munsif, Vedasanthur. The said
judgment was taken up on appeal by the second defendant in A.S.No. 06
of 2012 on the file Sub Court, Vedasanthur. Along with appeal, the
second defendant had filed I.A.No.11 of 2012 to receive additional
evidence. The said appeal was allowed and remitted back to the trial
Court, since the Court had permitted the second defendant to file an
additional written statement. The suit was thereafter remitted to the
District Munsif Court, Vedasanthur and the plaintiff had filed reply
statement to the additional written statement.
(iii) For the first time, in the additional written statement the
second defendant had taken out the plea that the suit in O.S.No.100 of
2002 was hit by partial partition, since the plaintiffs had failed to include
survey No. 231/1d which also belongs to their father. In view of the
above additional written statement, the plaintiffs had filed I.A.No.188 of
2020 to amend the plaint, that is the subject matter of the present revision
petition.
(iv) The second defendant had filed a counter inter alia contending
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C.R.P(MD) No.201 of 2021
that the amendment is taken out with the delay of over 18 years and
therefore, it cannot be allowed.
(v) The learned Principal District Munsif, Vedasanthur, by his
order dated 04.12.2020 has dismissed the said application. Challenging
the same, the plaintiff is before this Court.
3.Heard the learned counsel appearing for the petitioner and the
learned counsel appearing for the second respondent and perused the
materials placed on record.
4.Admittedly, the defendants had not taken out a plea of partial
partition in the original written statement filed by them. However, the
defendants have stated about the sale deed dated 03.07.2000 in the
written statement which was filed on 06.11.2020 after the remand. The
amendment that is now sought for is to include the prayer to declare the
sale deed dated 03.07.2000 executed by the first defendant in favour of
the second defendant as null and void and to include the survey No.
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C.R.P(MD) No.201 of 2021
223/1D measuring an extent of 0.53.50 ares in Vadukampadi village as
the second item of the property.
5.Since the issue of partial partition has been taken for the first
time in the additional written statement, the amendment insofar it relates
to the inclusion of the second item of the property is allowed. However,
the amendment with reference to declaring the sale deed dated
03.07.2000 as null and void is dismissed, since the plaintiffs had been
put on notice about the sale deed as early as in the year 2002 itself and no
steps have been taken to carry out the necessary amendment.
6.In the result, this Civil Revision Petition is partly allowed and
I.A.No.188 of 2020 on the file of the Principal District Munsif,
Vedasanthur, Dindigul District, is partly allowed. No costs.
Consequently, connected miscellaneous petition is closed.
16.11.2021
Index : Yes/No
Internet : Yes/No
cp
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C.R.P(MD) No.201 of 2021
P.T.ASHA, J.
cp
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.
To:-
The Principal District Munsif,
Vedasanthur.
C.R.P(MD)No.201 of 2021
16.11.2021
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