Madras High Court
Manoharan vs Malarkodi on 14 September, 2022
C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.09.2022
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
C.R.P. Nos.820 & 821 of 2020
&
CMP No.4365 of 2020
Manoharan ... Petitioner in both petitions
Vs.
1. Malarkodi
2. Amutha
3. Kumar
4. Prbhakaran
5. Mary @ Dhanalakshmi
6. Gandhi ... Respondents in both petitions
Common Prayer: Civil Revision Petitions filed under Article 227 of
Constitution of India against the fair and decretal order dated 08.11.2019
made in I.A.Nos.721 & 722 of 2019 in O.S. No. 694 of 2018 on the file of
the Subordinate Judge, Omalur.
In both petitions :
For Petitioner : Mr. R. Thirugnanam
For R1 & R2 : Mr.V. Sekar
For R3 to R6 : No appearance.
COMMON ORDER
https://www.mhc.tn.gov.in/judis
C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020
The present civil revision petitions are filed against the fair and
decretal orders dated 08.11.2019 made in I.A.Nos.721 & 722 of 2019 in
O.S. No. 694 of 2018 on the file of the Subordinate Judge, Omalur.
2. The revision petitioner is the 4th defendant in O.S. No.694 of
2018 on the file of the Subordinate Judge, Omalur. The respondents 1 &
2 / plaintiffs filed the above suit for partition of the suit properties into 5
equal shares and to allot one such share to them and also for granting
permanent injunction restraining the defendants from alienating the suit
properties to the third parties. The defendants 1 to 5 filed a written
statement and after framing of issues, both the parties went for trial. The
evidence on the side of the plaintiffs and the defendants were closed and
both the counsels appearing on behalf of the plaintiffs and the defendants
argued the case. The case was posted for judgment on 29.04.2019.
Before pronouncing the judgment, the plaintiffs filed the following two
petitions:
a) To reopen the case which is posted for judgment under Section 151
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C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020
CPC in I.A. No.721 of 2015.
b) To amend the plaint under Order VI Rule 17 and Section 151 CPC
in I.A. No. 722/2019.
The learned trial judge allowed both the applications vide his orders dated
08.11.2019. Aggrieved over the same, the 4th defendant has filed the
present revision petition.
3. Mr.R. Thirugnanam, learned counsel for the revision
petitioners contended that when the matter is posted for judgment after
conclusion of trial, the plaintiffs are precluded from filing a petition to
amend the plaint as per proviso to Order VI Rule 17 CPC which reads as
follows:
"17. Amendment of pleadings. - The Court may at any stage
of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just,
and all such amendments shall be made as amy be necessary
for the purpose of determining the real questions in
https://www.mhc.tn.gov.in/judis
C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020
controversy between the parties.
provided that no application for amendment shall
be allowed after the trial has commenced, unless the Court
comes to the conclusion that in spite of due diligence, the
party could not have raised the matter before the
commencement of trial."
His specific contention is that the the trial court cannot allow the petition
to amend the plaint after the trial has commenced, unless the Court comes
to the conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial. He also relied on the
decision in Pandit Malhari Mahale vs. Monika Pandit Mahale & ors
reported in 2020 (1) TLNJ 188 (Civil), wherein it has been held thus:
From the evidence on record, it does appear that
evidence had begun and thereafter amendment application
was filed. Without their being any finding by the Court as
contemplated by Order VI Rule 16 proviso, the Court ought
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C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020
not to have allowed the amendment.
In the present case, the Civil Judge has not
returned any finding that the Court is satisied that in spite of
due deligence, the party could not have raised the matter
before the commencement of trial. In Vidyabai & Ors. Vs.
Padmalatha & Anr. [(2009) 2 SCC 409], this Court
observed in para 19 as under:
"19. It is primal duty of the Court to decide as to
whether such an amendment is necessary to decide the
real dispute between the parties. Only if such a
condition is fulfilled, the amendment is to be allowed.
However, proviso appended to Order 6 Rule 17 of the
Code restricts the power of the court. It puts an
embargo on exercise of its jurisdiction. The court's
jurisdiction in a case of this nature is limited. Thus
unless the jurisdictional fact, as envisaged therein, is
found to be existing, the court will have no jurisdiction
at all to allow the amendment of the plaint."
There being no finding by the Court that the Court
is satisfied in spite of due diligence, the party could not
introduce amendment before commencement of the trial, the
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C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020
order of the Trial Judge is unsustainable. The High Court
has not adverted to the above aspect of the matter. In view o
aforesaid, we allow the appeal and set aside the order of the
High Court as well as the Civil Judge, the amendment
application stands dismissed."
He also drew the attention of this Court to the orders passed by the trial
judge in I.A. No.722/2019 under Order VI Rule 17 and Section 151 CPC,
wherein he has observed that the plaintiffs by oversight had omitted to
include the amendment in the plaint as sought for by them in the said
petition. His specific contention is that, on this ground, the trial court
cannot allow the petition to amend the plaint, because as per the decision
of the Hon'ble Supreme Court cited supra, the trial court has not given
any finding to the effect that in spite of due diligence, the party was
unable to introduce amendment before commencement of the trial.
4. The amendment sought for in the petition in I.A.
No.722/2019 is extracted hereunder:
1) In the body of the plaint, insert the following para as para
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C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020
12-a) between the paras 12 and 13.
12-a) When the plaintiffs were preparing for reply
arguments they came to know that they have failed to
mention about a partition deed dated 23.09.1974. In fact the
said partition deed was created without the plaintiffs'
knowledge and behind their back. The said partition deed
has not been acted upon and it is a void and invalid
document. The suit properties remain in common possession
and enjoyment and include the plaintiffs' undivided share.
The plaintiffs are not parties to the said fase partition deed
dated 23.09.1974 and in fact, the plaintiffs' father
Dharmalingam was also not a party to the said partition
deed. While so, how the said document can be considered as
a genuine and perfect document. The said partition deed
won't give valid right and title to the participants of the
document and won't bind the plaintiffs' right and share in the
suit properties. Hence the plaintiffs ignore the said
partition deed.
5. A perusal of the records shows that the 2nd defendant in his
written statement dated 20.03.2012 had clearly mentioned about the
registered partition deed dated 23.09.1974. It is also seen from the
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C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020
counter filed by the present revision petitioner in the petition in I.A.
No.722/2019 that P.W.1 was cross examined with regard to the partition
deed dated 23.09.1974 and P.W.1 seems to have answered all the
questions with regard to the partition deed. This has not at all been
disputed by the counsel for the respondent/plaintiff. However he
contended that in order to determine the real question in controversy
between the parties, the amendment in the instant case is absolutely
necessary. As already observed, as per the proviso to Order VI Rule 17
CPC, no application for amendment shall be allowed if the trial has
commenced unless the Court comes to the conclusion that in spite of due
diligence the party could not have raised the matter before
commencement of the trial. In the instant case, as rightly pointed out by
the counsel for the revision petitioners, the trial court has not recorded
any findings in this regard. Moreover, the respondent/plaintiff knew the
existence of partition deed dated 23.09.1974. However, he did not file
either a reply statement or seek for an amendment of the plaint at the
earliest point of time. Therefore, the Civil Revision Petitions are liable to
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C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020
be allowed. Since the suit is of the year 2018 and posted for judgment,
the trial court is directed to dispose of the suit within a period of one
month from the date of receipt of a copy of this order.
6. In the result,
i. the Civil Revision Petitions are allowed. No costs. Consequently,
connected miscellaneous petition is closed.
ii. The orders passed by the learned Subordinate Judge, Omalur, dated
08.11.2019 in I.A.Nos.721 & 722 of 2019 in O.S. No. 694 of 2018,
is set aside.
iii. The learned Subordinate Judge, Omalur, is directed to dispose of
the suit within a period of one month from the date of receipt of a
copy of this order.
14.09.2022
Index : Yes/No
Internet : Yes/No
Speaking/non speaking
bga
R.HEMALATHA, J.,
https://www.mhc.tn.gov.in/judis
C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020
bga
To
1. The Subordinate Judge, Omalur,
2. The Section Officer, VR Section, High Court, Madras.
C.R.P. Nos.820 & 821 of 2020
&
CMP No.4365 of 2020
14.09.2022
https://www.mhc.tn.gov.in/judis
