Madras High Court
A.Arunachala Mankondar vs Santhi Muthusamy on 2 November, 2023
C.R.P(MD)No.2058 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE P.B.BALAJI
C.R.P(MD)No.2058 of 2017
and
C.M.P(MD)No.10230 of 2017
A.Arunachala Mankondar : Petitioner
.vs.
1.Santhi Muthusamy
2.M.Ramalingam
3.R.Viswanathan
4.Padmavathi : Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order dated 10.10.2017 made in
I.A.No.93 of 2016 in O.S.No.2 of 2012 on the file of the III Additional
District Judge, Thanjavur @ Pattukottai and allow this Civil Revision
Petition.
For Petitioner :Mr.Raguvaran Gopalan
For Respondents :No Appearance
****
1/5
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.2058 of 2017
ORDER
The revision is filed at the instance of the second defendant, who
had taken out an application to amend the plaint in a partition suit on the
premise that certain properties, which were available for partition, had
been left out.
2.It is the specific case of the Revision Petitioner that despite the
same being brought to the notice of the plaintiffs, by way of written
statement, the plaintiffs did not choose to file any reply statement and
therefore, the Revision Petitioner was driven to the necessity of filing
necessary amendment application to include the properties, which were
left out in the plaint. The trial Court, however, has dismissed the said
application, as against which, the present Revision Petition has been
preferred.
3.Mr.Raguvaran Gopalan, learned Counsel for the Revision
Petitioner would submit that no prejudice would be caused to the
respondents/plaintiffs, if the properties are included, as it would only
avoid multiplicity of proceedings and shorten the litigation for all the
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C.R.P(MD)No.2058 of 2017
parties. More over, he would also state that being a partition suit, the
defendants are also the plaintiffs for all practical purposes and therefore,
the application ought to have been allowed.
4.He would also place reliance on the Division Bench judgment of
this Court reported in 2012 (1) CTC 159 [Solavaiammal and others
vs.Ezhumalai Gounder and another], where, this Court has held that an
application for amendment in a suit for partition is maintainable even at
the instance of one of the defendants, as the principle of dominus litus is
a general rule in respect of civil suit and the same cannot be extended to
a suit for partition.
5.Having heard the learned Counsel for the Revision Petitioner and
also perused the records, I am of the opinion that though the defendants,
who can also be treated as plaintiffs, are entitled to seek inclusion of the
left out properties, the proper procedure would be to raise the same by
way of a counter claim. If the defendants’ application for amendment is
allowed and subsequently, the plaintiffs do not choose to carry out
amendment, then the suit will have to be dismissed for not carrying out
the amendment ordered. The defendants are not entitled to carry out the
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.2058 of 2017
amendments to the plaint, even if the amendment application was
ordered at their instance. To avoid such an anomalous situation, the better
course to adopt would be to permit the Revision Petitioner to file an
amendment application to his written statement or file an independent
counter claim, as he may deem fit and proper and the Trial Court shall
entertain the same and the question of limitation of filing the amendment
petition seeking to amend the written statement and filing of the
additional written statement post trial shall not be put against the
Revision Petitioner. The Civil Revision Petition is dismissed, reserving
such liberty and the order of the trial Court is confirmed. No costs.
Consequently, connected miscellaneous petition is closed.
02.11.2023
Index :Yes/No
Internet :Yes/No
NCC :Yes/No
cmr
To
The III Additional District Judge, Thanjavur @ Pattukottai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.2058 of 2017
P.B.BALAJI, J.
cmr
C.R.P(MD)No.2058 of 2017
02.11.2023
https://www.mhc.tn.gov.in/judis
