Madras High Court
M.A.D.Krishnasamy vs Kamaraj Alias Raja (Died) on 3 June, 2025
C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.06.2025
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
and C.M.P.No.16232 of 2016
C.R.P.(NPD).No.3198 of 2016:
M.A.D.Krishnasamy .. Petitioner
Vs.
1.Kamaraj alias Raja (died)
2.Banumathi
3.S.Gomathi
4.Selvi Devika
5.Rathna
6.Kandhamani
7.Kamatchi
8.Mugugeswari
9.D.Iyyanar
10.Thilagavathi
11.Chandravathi
1/18
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
12.Vijayalakshmi
13.Savithiri
14.Karthiga
15.P.Devi
16.Kavitha
17.P.Ramesh Babu
18.Suresh Babu
19.K.Geetha
20.K.Murugananth .. Respondents
(Respondents 19 and 20 are brought on
record as LRs of the deceased 1st respondent
vide Court order dated 14.03.2025 made in
C.M.P.Nos.14638 to 14640 of 2024 in
C.R.P.No.3198 of 2016)
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to strike off the I.A.No.271 of 2011 in
O.S.No.436 of 1975 on the file of the Principal Subordinate Judge, Salem,
without any judicial order.
For Petitioner : Mr.K.Selvaraj
For R1 : Died
For RR 2 to 9 : Mr.P.Jagadeesan
For RR 10, 11, 13 to 18 : No appearance
For R12 : Ms.Zeenath Begum
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
C.R.P.(NPD).No.2466 of 2017:
Meenakshi (died)
Ranganayaki (died)
Ramalingam (died)
Dayalan (died)
1.Kamaraj @ Raja (died)
2.Banumathi
3.S.Gomathi
4.Selvi.Devika
5.Rathna
6.Kanthamani
7.Kamatchi
8.Murugeswari
9.Ayyanar
10.K.Geetha
11.K.Murugananth .. Petitioners
(Petitioners 10 and 11 are brought on record
as LRs of the deceased 1st petitioner viz.,
Kamaraj @ Raja, vide Court order dated
11.12.2024 made in C.M.P.Nos.16415,
16421 & 16423 of 2024 in C.R.P.No.2466 of
2017)
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
Vs.
Loganathan (died)
Neelambal (died)
Thangammal (died)
M.A.Duraisamy (died)
Pandurangan (died)
1.Krishnasamy
2.Thilagavathy
3.Chandravathy
4.Vijayalakshmi
5.Savithiri
6.Karthika
7.P.Devi
8.P.Kavitha
9.P.Ramesh Babu
10.Suresh Babu .. Respondents
Prayer: This Civil Revision Petition is filed under Section 115 of Civil
Procedure Code, praying to set aside the fair and decreetal order dated
17.03.2016 passed in I.A.No.373 of 2015 in O.S.No.436 of 1975 on the file
of Principal Subordinate Judge, Salem.
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
For Petitioners : Mr.P.Jagadeesan
For R1 : Mr.K.Selvaraj
For RR 2 to 10 : No appearance
C.R.P.(NPD).No.2467 of 2017:
Meenakshi (died)
Ranganayaki (died)
Ramalingam (died)
Dayalan (died)
1.Kamaraj @ Raja (died)
2.Banumathi
3.S.Gomathi
4.Selvi.Devika
5.Rathna
6.Kanthamani
7.Kamatchi
8.Murugeswari
9.Ayyanar
10.K.Geetha
11.K.Murugananth .. Petitioners
(Petitioners 10 and 11 are brought on record
as LRs of the deceased 1st petitioner viz.,
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
Kamaraj @ Raja, vide Court order dated
11.12.2024 made in C.M.P.Nos.15460,
15462 & 15465 of 2024 in C.R.P.No.2467 of
2017)
Vs.
Loganathan (died)
Neelambal (died)
Thangammal (died)
M.A.Duraisamy (died)
Pandurangan (died)
1.Krishnasamy
2.Thilagavathy
3.Chandravathy
4.Vijayalakshmi
5.Savithiri
6.Karthika
7.P.Devi
8.P.Kavitha
9.P.Ramesh Babu
10.Suresh Babu .. Respondents
6/18
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
Prayer: This Civil Revision Petition is filed under Section 115 of Civil
Procedure Code, praying to set aside the fair and decreetal order dated
17.03.2016 passed in I.A.No.373 of 2015 in O.S.No.436 of 1975 on the file
of Principal Subordinate Judge, Salem.
For Petitioners : Mr.P.Jagadeesan
For R1 : Mr.K.Selvaraj
For RR 2 to 3 : No appearance
For RR 4 to 10 : Not ready in notice
COMMON ORDER
This is an unfortunate case, where a litigation which commenced in
1975 is still languishing before the Court without seeing the end of it.
2.C.R.P..No.3198 of 2016 has been filed to strike off the proceeding in
I.A.No.271 of 2011 in O.S.No.436 of 1975 on the file of the Principal
Subordinate Judge, Salem, as it is one passed without any judicial order.
3.C.R.P.No.2466 of 2017 has been filed to set aside the fair and
decreetal order dated 17.03.2016 passed in I.A.No.373 of 2015 in O.S.No.436
of 1975 on the file of Principal Subordinate Judge, Salem.
4.C.R.P.No.2467 of 2017 has been filed to set aside the fair and
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
decreetal order dated 17.03.2016 passed in I.A.No.373 of 2015 in O.S.No.436
of 1975 on the file of Principal Subordinate Judge, Salem.
5.One, A.Loganathan presented a suit for partition and separate
possession in O.S.No.436 of 1975. The said suit, after hot contest, came to be
decreed on 12.07.1978. Aggrieved by the said judgment and decree, an
appeal was preferred before this Court in A.S.No.921 of 1978. A Division
Bench of this Court considered the appeal and after passing an order of
substitution, confirmed the decree with cost. Aggrieved by the said decree,
Special Leave Petitions were preferred before the Supreme Court in
S.L.P.Civil.No.2602 of 1986 and S.L.P.Civil.No.16059 of 1986. The SLPs
were dismissed by that Court by an order dated 04.05.1992.
6.Thereafter, the plaintiffs did not evince any interest in filing an
application for final decree. Hence, the defendants 3 & 4, filed an application
for final decree in I.A.No.271 of 2011. A counter was also received in the
said application. It is to strike off this petition that the first of the revisions
has been preferred.
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
7.While the litigation was pending before the Court, several parties
went to meet their maker. Apart from that, addresses of the parties were also
changed. In addition, Salem which was in 1975 a Municipality, had now
become a Corporation. Consequently, the town survey numbers and the ward
numbers changed. Hence, it required a formal amendment.
8.The learned counsel for the petitioner with the permission of the
Court amended the final decree petition. He also filed an amended petition
copy. Alleging that fraudulent and illegal amendments had been carried out,
the 6th defendant is on revision before this Court to strike off the proceedings.
9.Apart from this issue, the final decree petitioners took out two
applications in I.A.No.373 of 2015 and I.A.No.378 of 2015. In I.A.No.373 of
2015. The petitioners wanted the short and long cause title to be corrected to
include the words “died”, after the 7th respondent name. Similarly, in the
description of the property, they wanted the same to be aligned in accordance
with the preliminary decree. In so far as I.A.No.378 of 2015 is concerned, it
was an application filed under Sections 152 & 153 of the Code of Civil
Procedure, seeking to amend the preliminary decree. This was because in the
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
preliminary decree, the words “punja.ac.1.16 cents kist 2.61, S.No.348/1” was
missing in the 5th item, though being originally included in the plaint. The
learned Trial Judge dismissed the application in I.A.No.373 of 2015 and
allowed the application in I.A.No.378 of 2015. However, while allowing the
application in I.A.No.378 of 2015, instead of directing the amendment as set
forth above, he directed the amendment to the extent of “1.31 cents” instead
of “1.16 cents”. Aggrieved by the same, the defendants / final decree
petitioners are before me.
10.I heard Mr.K.Selvaraj, Mr.P.Jagadeesan and Ms.Zeenath Begum for
the respective parties.
11.The plea of Mr.K.Selvaraj is that the amendment has been carried
out in the final decree petition without filing a petition for the same.
Mr.P.Jagadeesan states that the amendment was carried out in the presence of
the learned counsel for the respondents before the Trial Court on the
instructions of the learned Presiding Officer. He points out, the amendment
does not in any way affect the merits of the case and merely brings forth the
subsequent development that have taken place on the ground of change in the
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
Salem Municipality to the Salem Corporation.
12.Though the revisions are being disposed of by this common order, I
would take up the challenge in C.R.P.(NPD).No.3198 of 2016.
13.The simple objection is there was no application for amendment, no
written statement for the amendment, and the amendment had been carried
out. This Court in exercise of the powers vested in its under Section 122 of
the Code of Civil Procedure, has framed the Rules in Civil Rules of Practice
and Circular Standing Orders. Under Rule 3(2) of the said Rules, it reads as
follows:
“3(2) ‘Application’ includes execution application,
execution petition, and interlocutory application,
whether written or oral ;”
14.This shows that the Civil Rules of Practice permit a Trial Court not
only to pass orders on the basis of a written application, but also consider oral
application that may be made by the counsels and parties, and dispose of the
same.
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
15.The revision is to strike off a final decree proceedings. As pointed
out above, the final decree proceedings came to be filed after the preliminary
decree had been confirmed till the Supreme Court. Once the preliminary
decree has attained a finality, the suit is not disposed of. Any party to a
partition suit is entitled to move an application for a final decree. Unless and
until the entire proceedings is an abuse of process of Court, this Court should
not strike off the same.
16.For the sake of satisfying myself, I have gone through the
amendments. They are not, in any way, going to affect the merits of the
litigation. The amendment application does not bring in any new property
into the schedule. It merely brings in the new Town Survey Numbers for the
properties which have already been included in the preliminary decree. They
are merely bringing forth certain subsequent developments that have taken
place pending the suit.
17.The suit has been pending for nearly five decades. Changes are
bound to happen, as have happened, in the present case. The proceedings of
the Court show that after the amendments being carried out, amended petition
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
copy of the final decree petition was also filed. Had the counsel improperly
made the amendment, there is no question of the Court receiving the amended
plaint copy. I am able to infer that the learned Trial Judge permitted the
learned counsel for the final decree petitioners to carry out the amendment.
The amendment not being of a nature, which spectacularly changes the suit or
affects the rights of the party, I do not find any error in the procedure adopted
by the Trial Court.
18.It is often repeated, and I find it necessary to repeat in the present
case, that procedure is only a hand maid of justice. The parties have been,
unfortunately before the Court, as set forth in the commencement of the order
for the past five decades. Perhaps this played in the mind of the learned Judge
and that too a decade ago, to hasten the litigation and see to its end. It is with
that purpose in mind, he had permitted the learned counsel for the final
decree petitioners to amend the petition formally without the written
application.
19.Now turning to other two revisions, the disposal of
C.R.P.(NPD).No.2467 of 2017, should not take more than a moment. The
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
learned Judge came to a conclusion that the application filed under Sections
152 and 153 of the Code of Civil Procedure deserves to be allowed and he
accordingly allowed the application. While allowing the application, instead
of permitting the amendment to the final decree as S.No.348/1, punja acre 16
cents with kist R.S.2.04, he has permitted it as S.No.348/1, punja 1 acre 31
cents. This is obviously an error. The plaint and the preliminary decree
speaks only about the punja acre 1.16 cents with kist 2.61 S.No.348/1. Punja
1 acre 31 cents with kist 2.04. The learned Judge while allowing the
application should have been cautious to bring the preliminary decree in
accordance with the relief sought for in the plaint.
20.In so far as I.A.No.373 of 2015 is concerned, the amendments are
cosmetic in nature. It seeks to record that the 7th defendant has died and seeks
to correct the typographical error in the 4th line of 'A' schedule mentioned
property. I compared the amendment sought for in the 'A' schedule with the
plaint, preliminary decree and final decree petition. The error pointed out in
the amendment application is obvious. By noting the factum of death and
correcting the typographical error in the final decree petition, the cause of
action of the proceedings are not changed. It continues to be a final decree
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
application in a partition suit. There is always a time for the civil revision
petitioner to file a counter in the amended final decree petition and point out
the errors, if there are any. For the said fact a proceeding initiated in 1975,
need not be stultified. As the amendment does not change the character of the
suit, nor is it barred by limitation, I am inclined to consider the revision.
Accordingly, the order passed when the final decree application has been
filed on the strength of the preliminary decree which has been confirmed as
above, I do not find any reason to strike off the same. The defendants / final
decree petitioners are merely reminding the Court to convert the declaration
of their shares into an executable final decree, in order to take possession
based on the shares that will be allotted in the final decree. This is their legal
entitlement and I do not find any abuse of process of Court to strike off the
said proceedings.
21.In the light of the above discussion, I pass the following order:
(i)C.R.P.(NPD).Nos.2466 and 2467 of 2017 are allowed. The final
decree petitioners shall file a necessary amended petitions copy within a
period of one week from the date of uploading of the order on to the website
of this Court;
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
(ii)C.R.P.(NPD).No.3198 of 2016 is disposed of sustaining the
amendment made by the petitioner in the final decree application on the
condition that within the period aforesaid the final decree petitioners shall
pay Mr.K.Selvaraj, learned counsel for the petitioner in
C.R.P.(NPD).No.3198 of 2016, a sum of Rs.10,000/- (Rupees Ten Thousand
Only) as cost;
(iii)As allegations of tampering of records have been made by
Mr.K.Selvaraj, the learned Principal Subordinate Judge, Salem, shall ensure
that the custody of the records are under his control. He shall not permit any
unauthorized persons to tamper with the records, lest allegations be made
against the Court in the game of litigation between the petitioner and the
respondents;
(iv)The proceedings have been pending for the past fifty years. The
learned Principal Subordinate Judge, Salem, shall not grant unnecessary
adjournments to any party. He shall ensure that once the amended petition
copies are filed by the final decree petitioners, the matter is taken up for
disposal on a day to day basis. He shall ensure that the matter is granted
atleast three effective hearings per week;
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(v)In case any request for adjournment is made either by the petitioners
or by the respondents and they are without any basis, he is at absolute liberty
to proceed further after setting those litigants exparte;
(vi)In any event, the final decree applications shall be disposed of on or
before 28.08.2025 and a compliance report together with the order passed in
the final decree application shall be submitted before this Court through a
Special Messenger on 29.08.2025.
22.In the result,
(i)C.R.P.(NPD).Nos.2466 & 2477 of 2017 are allowed. No costs.
(ii)C.R.P.(NPD).No.3198 of 2016 is disposed of with cost.
Consequently, the connected miscellaneous petition is closed.
23.Call the matter on 29.08.2025 'for reporting compliance'.
03.06.2025
krk
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes / No
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C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
V.LAKSHMINARAYANAN, J.
krk
To
The Principal Subordinate Judge,
Principal Sub Court,
Salem.
C.R.P.(NPD).Nos.3198 of 2016 and 2466 & 2467 of 2017
03.06.2025
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