Muniammal(Deceased) v. Durai

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on: 07.08.2018

Pronounced on: 23.08.2018

CORAM

THE HONOURABLE MS. JUSTICE P.T.ASHA C.R.P(NPD).No.1156 of 2004

1. Muniammal(deceased)

2. Chinthamani ... Petitioner/Petitioner/Plaintiff (The 2nd petitioner was brought on record as legal heir of the deceased sole petitioner vide order of Court dated 13.09.2017 made in CMP.No.1152 & 1153 of 2010 in CRP.No.1156 of 2004.) Vs.

1.Durai 2.Munusamy 3.Munniammal 4.Kuppu 5.Bonda 6.Raman 7.Krishnan 8.Kannammal 9.Elangovan 10.Panchalai 11.Savithiri 12.Kannammal 13.Murugesan 14.Loganathan 15.Chinnadurai 16.Elumalai ... Respondents/Respondents/Defendants Prayer ::

Civil Revision Petition filed under Section 115 of the Civil Procedure Code against the order dated 02.12.2003 in I.A.No.253 of 2003 in O.S.No.749 of 1981 on the file of the District Munsif, Ranipet.

For Petitioner : Mr.A.Gowthaman For Respondents : Mr.V.K.Rajagopalan, for R12 to R15 - No appearance, R1, 2 & 8 - Died, R3, 6, 7, 9 & 10 - No appearance, Not ready in notice regarding R4, 5, 11 & 16.

O R D E R

The plaintiff is the revision petitioner before this court. The revision petitioner is challenging the order dated 02.12.2003 of the District Munsif, Ranipet in I.A.No.253 of 2003 in O.S.No.749 of 1981 in and by which the learned District Munsif had dismissed the application filed by the revision petitioner to amend the plaint, preliminary decree and final decree in so far as it relates to the schedule of properties.

2. A resume of the facts are as follows:- (a) The revision petitioner had filed a suit for a partition and separate possession of her 1/5th share in the suit schedule properties as heir of her husband Perumal S/o. Madurai Munisami Gounder. The schedule of properties as shown in the plaint are described herein below:- "In North Arcot District, Wallajah taluk, Wallajah Sub-registration District, Mukuntharayanpet Village No.60.

1. Punja S.No.434/13 Ac. 0-21 Cost : Rs. 1-45

2. Nanja S.No.434/3 Ac. 0-87 Cost : Rs. 1-35 ------------ Rs. 2-80 ------------ Both the items 1 and 2 clubbed, together, boundaries for this South of the land of Appakutty Gounder, West of the land of Vanapadi Ellai, East of the land of Ratinam; North of the land of Lokananthan.

3. Nanja S.No.132/1, Ac-1-62 Cost: Rs 11-13 within the boundaries West of the land of Manikkam; East of the land in S.No.439; South of the land in S.No.431;

North of the land in S.No.438;

4. Nanja S.No.423/1; Ac. - 0-75 Cost : Rs. 4-50

5. Nanja S.No.423/2; 0-50 3-40 --------- --------- 1-25 7-90 Items 4 and 5 clubbed together within the boundaries North of the land of Nagappan and Jayaraman, South of the land in Nanja S.No.428, East of the land in S.No.422, West of the land of K.T.Munisami. Items 1 and 2 Total Ac. - 1-08 Cost: Rs. 2-80 Item 3 1-62 11-13 Items 4 and 5 1-25 7-90 --------- --------- 3-95 21-83

6. In the above mentioned District and Taluk and sub-registration District in Edapalayam Village H/Q. Vanapadi, East of the house and site of Chinnadurai; West of the site of Kullaraja gounder, South of the Rajanakoil St., North of the Road; Door No.43-A, 43-B measuring about North - South 120 feet; East West 40 feet; House terraced with all the fixture appurtenances etc., including ground and site. Valuing Rs.10,000/-." (b) A preliminary decree was passed on 19.03.1986 in respect of the aforesaid properties. After the filing of the final decree proceeding an Advocate Commissioner was appointed to measure and divide the property by metes and bounds. After the visit of the Advocate Commissioner the revision petitioner came to know that there is some confusion with reference to the S.Nos. and extent. Therefore, the revision petitioner filed I.A.No.253 of 2003 and sought to amend the plaint, preliminary decree and the final decree petition.

(c) The amendment that was sought for is detailed below:- "The following amendment in the plaint, preliminary decree dated 16.03.1999 and in the final decree petition.

1. In item 2 of the schedule mentioned property to delete the S.No.434/3-0.87 cents and put it in the place 434/3A-0.46 cents and 434/3B-0.28 cents and total extent 9.74 cents with 1.35;

2. In item 3 of the schedule mentioned property to delete S.No.132/1 and put it in the place 432/1.

3. In the total column of the schedule mentioned property in the place of items 1 and 2 total Acre-2.95 cents to delete total extent 3-95 cents and put it in the place.

4. To delete the following sentence in the 6th item of the schedule mentioned property "measuring about North-South : 120 feet; East-West : 40 feet; house terraced with all the fixtures appurtenances etc., including the ground and site valuing and put it in the place, the following sentence.

Comprising of present S.Nos.399/43; 399/44; 399/45; 399/47 extent North and South 63.6 feet and East to West; Northern side:13.6.metres; Southern side:16.8.metres in this 3 terraced houses and one thatched house with all the fixtures appurtenances etc., including the ground and site and comprising of present adjoining S.Nos.401/6 and 401/7 North x Sourth Western side: 31-4- metres, eastern side:32.8 metres and East x West Northern side:15.2. metres; Southern side: 13.2. metres Value:Rs.10,000/-."

(d) The respondents resisted this application inter alia by contending that the amendment cannot be introduced after the trial and further the amendment is likely to change the very subject matter of the suit and therefore sought for its dismissal. They contended that though ample opportunities came their way the petitioner has not taken steps to amend the schedule and the present petition is highly belated. (e) The learned District Munsif, Ranipet, dismissed the petition by holding that the preliminary decree was passed on basis of the plaint schedule and after the decree in the suit the amendment cannot be allowed. Aggrieved by this order the revision petitioner is before this Court.

3. Heard Mr.A.Gowthaman, learned Counsel for the revision petitioner. Though the respondents 12 to 15 had entered appearance through the Counsel, the Counsel did not appear when the matter was posted on 22.06.2018, 28.06.2018, 05.07.2018, 13.07.2018, 24.07.2018. On 24.07.2018 the learned Counsel for the petitioner concluded his arguments and the matter was directed to be posted "For Orders" on 27.07.2018 as the respondents' Counsel did not appear. On 27.07.2018 the matter was listed under the caption "For Orders". Once again there was no appearance by the respondents' Counsel and this Court adjourned the matter by a week under the same caption. On 07.08.2018 when the matter was listed, yet again there was no

representation on behalf of the respondents hence this Court reserved for Orders.

4. The learned Counsel for the petitioner would argue that the amendment does not change the nature or subject matter of the suit and the respondents are not going to be prejudiced in any manner. He would further argue that an amendment can be ordered till the final decree is passed and in support of his contention would submit the following Judgments: (i) Kandasamy Vs. Balammal and 4 others reported in 1995(I) CTC page 307.

(ii) Peethani Suryanarayana and another Vs. Repaka Venkata Ramana Kishore and Others reported in 2009(11) SCC page 308.

(iii) Vadival and 2 others Vs. Saroja reported in 2010 (2) CTC 71 (iv) Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another reported in 2011(9) SCC page 788.

5. I am first dealing with the maintainability of the amendment petition after the passing of the preliminary decree and pending the final decree proceedings. In the Judgment Kandasamy Vs. Balammal and 4 others reported in 1995(I) CTC page 307, this Court in paragraph No.4 has observed as follows:- "When once the partition suit is filed till the final decree is passed, the entire proceedings is wide open. Even any number of preliminary decrees can be passed. Hence, unless and until the final decree is passed, the trial court is having jurisdiction over the entire matter, except when the matter is pending in appeal against the preliminary decree. Once the appeal is over and again the matter comes back to the trial court for passing the final decree, the trial court has got jurisdiction to amend the plaint as well as the decree."

6. The Hon'ble Supreme Court in the Judgment Peethani Suryanarayana and another Vs. Repaka Venkata Ramana Kishore and Others reported in 2009(11) SCC page 308, has observed that there is no doubt or dispute about the power of the Court to allow an application for amendment. However, the Hon'ble Supreme Court, adds a word of caution when exercising such a wide power and holds that this power is circumscribed by the following factors viz.,

(i) the application must be bonafide, and (ii) the same shall not cause injustice to the either side; and (iii) it should not affect the right already accrued to the defendants.

7. In yet another judgment of the Hon'ble Supreme Court Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another reported in 2011(9) SCC page 788, the Hon'ble Supreme Court while upholding the order of the trial Court allowing the amendment made the following observations:- "It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree. The view of the High Court is against law and the decisions of this Court in Phoolchand and S.Sai Reddy."

8. In the case of hand also final decree is yet to be passed and therefore following the dicta laid down in the aforesaid Judgments, it is clear that the application for amendment is maintainable.

9. Now coming to the amendment that is now sought for, it is clear from a perusal of the records and pleadings that in so far as the amendments sought for with reference to item Nos.1 to 5 of the schedule of properties the same does not alter either the nature or the subject matter of the suit. By allowing this amendment no prejudice is likely to be caused to the respondents. Therefore the amendment in so far as it relates to item Nos. 1 to 5 of the schedule can be allowed and the learned District Munsif, has committed a grave error in not allowing this. As regards the amendment sought for with reference to Item No. 6 of the schedule of properties, I am of the view that the amendment would result in a new property being substituted in the place of the original one therefore the order of the learned District Munsif, in so far as it relates to this property should be confirmed.

10. In the result the Civil Revision Petition is partly allowed the order of the learned District Munsif in I.A. No.253 of 2003 in O.S. No.749 of 1981 in so far as it relates to item Nos. 1 to 5 of the Schedule of properties is set aside and in so far as it relates to the 6th Schedule property, the same is confirmed. No costs.

Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar msvm To The District Munsif, Ranipet.

Copy to The Section Officer, VR Section, High Court, Madras.

+1cc to Mr.M.Gouthaman, Advocate Sr.57539 C.R.P(NPD).No.1156 of 2004 mg[co] srg 5/9/2018