Madras High Court
Parthiban vs M.Sekar on 17 April, 2023
C.R.P(MD)No.1354 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.04.2023
CORAM
THE HON'BLE MRS.JUSTICE L.VICTORIA GOWRI
C.R.P(MD)No.1354 of 2014
and
M.P(MD)No.1 of 2014
1.Parthiban
2.Karthigeyarn
3.Rajalakshmi ... Petitioners
Vs.
1.M.Sekar
2.S.Govindarajan ... Respondents
PRAYER : Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order passed by
the District Munsif Court, Sivagangai in I.A.No.126 of 2014 in O.S.No.
78 of 2012 dated 10.03.2014.
For Petitioners : Mr.N.Tamilmani
For Respondents : No appearance
1/8
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C.R.P(MD)No.1354 of 2014
ORDER
This Civil Revision Petition has been filed as against the order
passed by the learned District Munsif Court, Sivagangai in I.A.No.126 of
2014 in O.S.No.78 of 2012 under Order VI, Rule 17 of the Code of Civil
Procedure, 1908, to amend the prayer column of the plaint. The suit was
one for declaration and permanent injunction to declare that the sale deed
bearing document No.1047/Madhagupatti, Sub Registry dated
04.10.2001 executed by the first respondent in favour of the second
respondent as null and void and further restrain the second respondent
from creating any kind of encumbrance over the plaint schedule property.
For the sake of convenience, the parties herein are arrayed as in the
I.A.No.126 of 2014.
2. All the petitioners / plaintiffs are the children of the first
respondent / defendant and the second respondent / second defendant is
the close friend of the first respondent / first defendant. The first
respondent / first defendant was not living with the petitioners / plaintiffs
and the relationship between the first respondent / first defendant and the
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C.R.P(MD)No.1354 of 2014
mother of the petitioners / plaintiffs were estranged and they were not in
talking terms. While so, the learned Counsel for the petitioner submitted
that without the knowledge of the petitioners / plaintiffs, the first
respondent / first defendant had executed the aforesaid Sale Deed, which
is one of their ancestral properties.
3. The first respondent / first defendant has admitted the same in
his written statement by way of admission made by the first defendant
and the second defendant in their written statement. It became necessary
for the petitioners / plaintiffs to file their amendment petition seeking to
amend the prayer column of the plaint for the relief of partition alone.
The learned Counsel for the petitioners / plaintiffs further submitted that
they have not sought for any other amendment either in the content of the
plaint or in the plaint schedule property. So that this amendment sought
will not change the nature of the suit.
4. The first respondent / first defendant did not file any counter in
the said amendment petition. However, the second respondent / second
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C.R.P(MD)No.1354 of 2014
defendant had filed counter, wherein he submitted that the first
respondent / first defendant has colluded with the petitioners / plaintiffs
and they have together filed this case by bringing in his father as the first
respondent / first defendant. The learned Trial Court however dismissed
the I.A. for the following reasons:
“After the trial has begun and the suit was posted for plaintiffs'
side evidence, the petitioners have filed this petition for the amendment
of the plaint. Already P.W.1 specifically admitted that the suit property is
in the possession and enjoyment of the second defendant. Further the
P.W.1 had admitted that apart from the suit property, several other
properties belonging to his grand-father Muthanan are also situated in
their village and adjoining villages. Considering the above vital
admissions specifically made by the first petitioner / first plaintiff, the
Trial Court concluded that the petition for amendment is not
maintainable.”
5. When the case is called up for hearing today, there is no
representation for the first respondent and the name of the second
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C.R.P(MD)No.1354 of 2014
respondent is printed in the cause list. This case was posted today under
the caption 'For Orders' for the arguments of the respondents' side . Even
today, the learned Counsel for the respondents did not turn up.
6. Heard the learned Counsel for the revision petitioner anxiously
and perused the materials available on record. The learned Counsel for
the revision petitioner took me through the various grounds of the Civil
Revision Petition and the contents of the documents.
7. I am fully satisfied with the arguments substantiated by the
learned Counsel for the petitioner.
8. This Court is of the considered view that though admissions are
made by P.W.1, that is, the first petitioner / first plaintiff herein in the
cross-examination about the existence of other family properties, it is all
a matter to be decided in the suit after the completion of the trial in
entirety and the amendment of plaint can be made at any point of time
without prejudice to the case pending, relying upon the judgments of this
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C.R.P(MD)No.1354 of 2014
Court in S.Kanthimathiammal and Others Vs. Nagammal and Others
reported in 2015 (4) CTC 666 dated 31.03.2015 and Thiru Alankadu
Immudi Ahora Dharma Sivachariar Aiyra Vaisya Madam Vs.
Udumalpet Samayapuram Ayira Vaisya Sangam, Represented by its
President reported in 2005 (4) CTC 664 dated 22.07.2005.
9. Hence, this Court is of the considered view that since the
amendment sought for is only with respect to the prayer seeking an
additional prayer of partition, without altering the nature of the case, it is
necessary that the order passed in I.A.No.126 of 2014 on the file of the
District Munsif Court, Sivaganga has to be set aside. In the result, this
Civil Revision Petition stands allowed. There shall be no order as to
costs. Consequently, connected Miscellaneous Petition stands closed.
17.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
BTR
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C.R.P(MD)No.1354 of 2014
To
1.The District Munsif Court,
Sivagangai.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1354 of 2014
L.VICTORIA GOWRI, J.
BTR
Order made in
C.R.P(MD)No.1354 of 2014
17.04.2023
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