Madras High Court
Abdul Kadar vs Mohammed Mustafa on 22 June, 2023
C.R.P(MD)No.2178 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.06.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.2178 of 2022
and
C.M.P.(MD)No.10120 of 2022
Abdul Kadar ...Petitioner/Petitioner
Vs.
1.Mohammed Mustafa
2.Kadar Sha
3.Mariyam Beevi
4.Habeeb Mohammed ... Respondents/Respondents
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to set aside fair and decreetal order dated
10.10.2022 made in I.A.No.306 of 2022 in O.S.No.42 of 2017 on the file
of the Sub Court, Aranthangi, Pudukkottai District.
For Petitioner : Mr.D.Rameshkumar
For Respondents 1 & 4 : Mr.S.Prabha
For Respondents 2 &3 : Mr.N.Bala Krishnan
ORDER
This Civil Revision Petition has been filed by the petitioner to set
aside the order passed in I.A.No.306 of 2022 in O.S.No.42 of 2017 dated
10.10.2022, on the file of the Sub Court, Aranthangi, Pudukkottai
District.
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2.The petitioner is the first plaintiff in O.S.No.42 of 2017 on the
C.R.P(MD)No.2178 of 2022
file of the Sub Court, Aranthangi, Pudukkottai. The suit was originally
dismissed by a judgment and decree dated 31.08.2018. Aggrieved by the
same, the petitioner herein had preferred an appeal in A.S.No.7 of 2019.
The learned Principal District and Sessions Judge, Pudukottai by a
judgment and decree dated 10.02.2022 allowed the appeal by way of
remand with the following observations:-
“Having considered the above said aspects to avoid
further aberration I am inclined to accept the prayer of the
parties and the matter can be remitted back for
consideration afresh and the plaintiffs is at liberty to file
appropriate application either for amending the plaint or
otherwise if the fact and circumstances warrant so and the
respondents are at liberty to file appropriate documents
before the trial Court and the documents produced before
the Court can also be considered by the learned
Subordinate Judge while considering the matter afresh in
accordance with law. With the above findings that the
matter is remitted back to the learned Subordinate Judge,
for disposal in accordance with law.”
3.Thereafter, the petitioner filed I.A.No.306 of 2022 under Order 6
Rule 17 of CPC to amend the plaint and to transpose the second plaintiff
as the third defendant. The learned Sub Judge, Aranthangi has dismissed
the application filed by the petitioner with the following observation:-
“NkYk; cupikapay; eilKiwr;rl;lk; fl;lis 1
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C.R.P(MD)No.2178 of 2022
tpjp 10(2)d;gb tof;fpd; jug;gpdiu Nru;f;fNth> ePf;fNth
kDtpd;gbNah my;yJ ePjpkd;wj;jpd; jd;dpr;irahd
mjpfhuj;jpd;gbNah ePjpkd;wj;jhy; nray;gLj;j ,aYk;.
Mdhy;> ,t;tof;fpd; tof;Fiuapy; 2k; thjpahf
$wg;gl;Ls;s jug;gpdiu 4k; gpujpthjpahf
Nru;f;fNtz;banjd tof;fpd; neLk; kw;Wk; FWk;
jiyg;gpy; kl;Lk; jpUj;jk; nra;J> tof;Fiu rq;fjpfspy;
1> 2 thjpfs; vd Fwpg;gpl;L $wg;gl;Ls;s rq;fjpfspy;
vt;tpj jpUj;jKk; nra;atpy;iy vdpy; mJ tof;Fiu
rq;fjpfspy; njsptw;w epiyia Vw;gLj;jptpLk;. vdNt>
Nkyik ePjpkd;wj;jhy; thjpfs; jug;gpy; tof;Fiuapy;
jpUj;jk; nra;a cupa kDtpid jhf;fy; nra;ayhk; vd;w
Rje;jpuj;Jld; mry; tof;fhdJ kPl;lDg;Gif
nra;ag;gl;bUg;gpDk;> nra;ag;gl Ntz;ba jpUj;jy;
gFjpapid guprPypj;J> ,e;j jpUj;jy; kDtpy;
rl;lj;jpd;gb jPu;T fhz Ntz;baJ ,e;ePjpkd;wj;jpd;
flikahFk;. vdNt> ,k;kDtpy; NfhupAs;s nra;ag;gl
Ntz;ba jpUj;jq;fshdJ ,aw;if ePjpf;F
Kuz;gl;Ls;sJld; tof;fpd; jPu;tpid ghohf;fptpLk;
vd;gjhy;> ,e;ePjpkd;wj;jhy; jpUg;jpAwhj
epiyapy; ,k;kDthdJ js;sgb nra;ag;gl Ntz;baJ
ePjpapd; eyDf;F cfe;jJ vd ,e;ePjpkd;wk;
jPu;khdpf;fpd;wJ.”
4.The learned counsel appearing for the petitioner submits that as
there is an open remand and also for a fresh trial, there cannot be any
impediment for amendment to plaint. That apart it is submitted that the
suit is of the year 2017 and no prejudice will be caused, if the
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C.R.P(MD)No.2178 of 2022
amendment was allowed. However, the Court has wrong dismissed the
petition for amendment.
5.Per contra the learned counsel appearing for the respondents
would submit that the order is well reasoned and does not require any
interference. That apart it is submitted that the petitioner cannot
transpose the second plaintiff as third defendant without filing
appropriate application. It is submitted that the impugned order does not
call for interference and therefore, prayed for dismissal of civil revision
petition.
6.Further the learned counsel appearing for the respondents
submits that the trial Court may be directed to dispose the suit as
expeditious as possible.
7.I have considered the arguments advanced by the learned
counsel for the petitioner and the respondents.
8.The law in the subject relating to amendment to pleading has
been recently explained by the Hon’ble Supreme Court in the case of
Life Insurance Corporation of India Vs Sanjeev Builders Private
Limited and others (Civil Appeal No.5909 of 2022). The reading of the
above decision indicates that pre trial amendment has to be allowed
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C.R.P(MD)No.2178 of 2022
liberally.
9.As the judgment and decree of the trial Court dated 31.08.2018,
stands completely effaced and since fresh trial has been ordered, it has to
be construed that the amendment that was sought for by the petitioner is
an amendment prior to trial. Therefore, the Court ought to have been
liberal in allowing the application. The impugned order passed by the
Sub Court, Aranthangi is liable to be interfered with.
10.Accordingly, the impugned order is set aside. Consequently,
I.A.No.306 of 2022 stands allowed. However, the petitioner will have to
file appropriate application for transposing the second plaintiff as the
fourth defendant in the above suit. The Sub Court, Aranthangi shall
dispose of O.S.No.42 of 2017 as expeditiously as possible preferably
within a period of 15 months from the date of receipt of a copy of this
order. Liberty is given to the respondents to file additional written
statement and the Court shall frame additional issues and proceed in
accordance with law.
11.Therefore, this Civil Revision Petition is allowed. No Costs.
Consequently, connected miscellaneous petition is closed.
https://www.mhc.tn.gov.in/judis 22.06.2023
C.R.P(MD)No.2178 of 2022
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
Mrn
C.SARAVANAN,J.
Mrn
To
1.The Sub Judge, Aranthangi, Pudukkottai District.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
C.R.P(MD)No.2178 of 2022
https://www.mhc.tn.gov.in/judis 22.06.2023
