Madras High Court
T.Shanmuga Sundaram vs T.K.Mohan on 19 July, 2023
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 19.07.2023
CORAM
THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN
C.R.P.No.3283 of 2019
and
C.M.P.No.21827 of 2019
T.Shanmuga Sundaram ...Petitioner
Vs.
1.T.K.Mohan
2.M.Parimala
3.M.Sakthivel
4.T.K.Ravichandran
5.V.Arul Pravin
6.Kasthuri
7.G.Ramesh Babu
8.G.Suresh Babu
9.G.Sabitha Parthiban
10.T.Manoharan
11.Malathi
12.Parvatham
13.Pachiammal
14.Indian Overseas Bank,
Mahalingapuram,
Chennai – 600 034.
15.Priya. ...Respondents
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2
Prayer:Civil Revision Petition filed under Article 227 of the Constitution
of India to prefer this Memorandum of Grounds of Civil Revision Petition
against the Docket order dated 26.11.2018 passed in O.S.No.103 of 2008 of
the Additional District Court, Mettur, Salem.
For Petitioner : Mr.T.R.Rajaraman
for M/s.P.Veena Suresh
For Respondents :
For R14 : M/s.V.Rajeswari
For R1 : Mr.C.Ramesh
For R4,R8,R9,R10,R14,R15 : -No Appearance-
For R2,3,5,6,7,11,12,13,16 : -Not Ready in Notice-
ORDER
This is a suit for partition. The first defendant filed a written
statement that was adopted by defendant Nos.2,3,4 and 6. Pending the suit,
first defendant passed away and the defendant Nos.2,5 and 6 being parties
to the suit already, the other legal heirs, namely, defendant Nos.16,17 and
18 were impleaded. The application was allowed on 30.03.2010.
2.The Trial Court has noted that the notice in the impleading
application was not served on defendant Nos.16 to 18 prior to allowing the
petition. Similarly, the application filed consequent to the impleading of
parties in I.A.No.450 of 2010 was also allowed without notice to defendant
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Nos.16 to 18.
3.After being impleaded, summons were issued to them on
16.06.2011. Defendant Nos.17 and 18 remained ex-parte. Defendant No.16
entered appearance and filed his written statement. I have to note that a
legal representative cannot have a superior right than the original defendant.
Therefore, the written statement filed by defendant No.16 could not have
exceeded the stand taken by D1. However, the written statement of
defendant No.16 was taken on file but no additional issues were framed.
4.On 18.01.2018 defendant No.2 filed a written statement which was
adopted by defendant Nos.3,4 and 6. However, even at that stage, the
written statement filed by defendant No.16 was not taken into consideration
for framing of issues.
5.In the meanwhile, the plaintiff was examined as P.W.1. Taking note
of the fact that the written statement of defendant No.16 was not taken into
consideration, at the time of framing of issues, the learned Judge has
ordered a de-novo trial.
6.Aggrieved by the same, the present revision has been presented.
Under the Code, a court has to frame issues on the date of first hearing of
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the suit. However, it does not bar a Court from framing additional issues at
any time prior to rendering the judgment.
7.The mistake committed by the court in the present case is not in
issuing the summons to defendant No.16 to 18 in the impleading as well as
consequential amendment petitions but also not taking into consideration
the written statement filed by defendant No.16 at the time of framing of the
issues. This anomaly has been set right by the impugned order.
8. The Learned Trial Judge has exercised his discretion which I do
not want to interfere under Article 227 of the Constitution of India because
at best it is a procedural error, which has been rectified by the court. The
Court will take into consideration, the observations made above, at the time
of disposal of I.A.No.195 of 2018 which has been filed to strike out the
defense of defendant Nos.2,3,4 and 6.
9. With the above observations the CRP is dismissed. No costs.
Connected Miscellaneous Petition is closed.
19.07.2023
https://www.mhc.tn.gov.in/judis
Index : Yes/No
Neutral Citation Case : Yes/No
nst
To:
The Additional District Court, Mettur, Salem.
V. LAKSHMINARAYANAN.J.,
nst
C.R.P.No.3283 of 2019
and
C.M.P.No.21827 of 2019
https://www.mhc.tn.gov.in/judis
19.07.2023
https://www.mhc.tn.gov.in/judis
