E.Chinnappaiyan v. Syed Shoukat

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.06.2017

CORAM:

THE HONOURABLE Ms.JUSTICE V.M.VELUMANI C.R.P.(PD)No.1641 of 2017 & CMP.No.8677 of 2017 E.Chinnappaiyan .. Petitioner Vs.

1. Syed Shoukat

2. Syed Mushtaq Hussain

3. Syed Ashfaq Hussaini

4. Syed Akbar Syed Habeeb Hussaini @ Khaleel (died)

5. Syed Jameel Ahmed

6. syed Imtiyaz Ahmed Hussaini

7. Syed Zaineb @ Nayyar Jehan

8. Syed Zaineb Fareeda @ Tanveer

9. S.N.Dinesh Kumar 10.ETA Develpers Private Ltd Rep. by its Authorised Signatory M.Kartikeyan 11.Rudravaram Developers Private Limited Rep.by its Authorised Signatory M.Karthikeyan 12.Duvvuda Developers Private Ltd., Rep. by its Authorised Signatory M.Karthikeyan

13. Rabath begum

14. Kutha Jha Sainan

15. Tabassum

16. Syda Zainab

17. Zakiya

18. Nazya Zainab

19. Sabiya Zainab

20. Minor Raffiya .. Respondents (Notice to the respondents 5 to 20 may be dispensed with) PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decretal order dated 18.11.2016 made in I.A.No.385 of 2016 in O.S.No.64 of 2010 on the file of the court of District Judge, District Court No.II, Kancheepuram and to dismiss the same.

For Petitioner : Mr. J.Ramakrishnan For Respondents / : Mr. P. Pazhamalai for R4 Caveator

ORDER

The Civil Revision Petition has been filed to set aside the fair and decretal order dated 18.11.2016 made in I.A.No.385 of 2016 in O.S.No.64 of 2010 on the file of District Court No.II, Kancheepuram.

2. The petitioner is the eighth defendant. The respondents 1 to 4 are the plaintiffs; the respondents 5 to 12 are the defendants 2 to 10; and the respondents 13 to 20 are the proposed defendants 11 to 18, who are the legal heirs of the deceased 1st defendant. The respondents 1 to 4 filed a suit for partition and for separate possession. During the pendency of the

suit, the first defendant died and his legal heirs i.e., the respondents 13 to 20 are added as necessary parties vide order dated 24.6.2013 passed in I.A.No.283 of 2012 and I.A.No.284 of 2012. Thereafter, the respondents 1 to 4 filed amended copy of the plaint without carrying out the amendment in the original plaint, i.e., without incorporating the particulars of the legal heirs in the plaint. The respondents 13 to 20/proposed defendants 11 to 18 entered appearance and are contesting the suit. Only at the time of arguments, the respondents 1 to 4 came to know that the amendment ordered was not carried out in the original suit and therefore, filed an application in I.A.No.385 of 2016 to amend the plaint.

While the petitioner/eighth defendant alone filed counter affidavit opposing the said application, the other respondents 5 to 12 did not file any counter. The learned Judge has allowed the application in I.A.No.385 of 2016 vide order dated 18.11.2016 holding that this petition is only a consequential amendment petition to the L.R. petitions filed vide I.A.No.283 of 2012 and I.A.No.284 of 2012, which was allowed earlier, and that no prejudice would be caused to the petitioner by allowing this petition, and it does not change the nature of the suit and it is necessary for the Court to decide the issue in the suit.

3. Against the said order dated 18.11.2016 passed by the learned District Judge, District Court No.II, Kancheepuram in I.A.No.385 of 2016, the present Civil Revision has been filed.

4. Heard the learned counsel appearing for the petitioner and the learned counsel for the fourth respondent and perused the materials available on record.

5. From the order of the trial Court, it is seen that the learned Judge is of considered view that the application in I.A.No.385 of 2016 filed by the respondents 1 to 4 seeking permission to carry out the amendment, is only a consequential amendment petition to the LR petitions viz., I.A.No.283 of 2012 and I.A.No.284 of 2012, which were allowed earlier. The learned Judge held that the amendment sought for by the respondents do not change the nature of the suit, instead it would necessitate the Court to decide the suit. Moreover, it is also observed in the order that the said application was not objected to by the main contestants except the petitioner herein. Under the said circumstances, this Court is of the view that the learned Judge has rightly allowed the application in I.A.No.385 of 2016. There is no

illegality or irregularity in the order dated 18.11.2016 passed by the learned District Judge, District Court No.II, Kancheepuram in I.A.No.385 of 2016 in O.S.No.64 of 2010 warranting interference by this Court.

6. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.

07.06.2017 Speaking Order/Non-speaking Order Index : Yes ds To The District Court No.II, Kancheepuram.

V.M.VELUMANI, J.

ds C.R.P.(PD)No.1641 of 2017 & C.M.P.No.8677 of 2017 07.06.2017 http://www.judis.nic.in