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Madras High CourtCRP/1606/2016disposed of

S.N.Balapattabi v. Bala Nagammal

2016-06-07Honourable Mr Justice C. T. Selvam7 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.06.2016

CORAM

THE HONOURABLE MR.JUSTICE C.T.SELVAM & C.M.P.No.8731 of 2016 S.N.Balapattabi ... Petitioner vs Bala Nagammal ... Respondent Civil Revision Petition filed under Article 227 of the Constitution of India praying to set aside the order passed in I.A.No.158/2016 in I.A.No.250 of 2015 is O.S.No.2 of 2007 dated 06.04.2016 on the file of III Additional District and Sessions Court, Gobichettipalayam.

For Petitioner :

Mr.V.Raghavachari for Mr.M.Naraayanaswamy For Respondent :

Mr.S.Parthasarathy, Senior Counsel for M/s. Kumar & Baskar *****

O R D E R

This revision challenges the order of learned III Additional District and Sessions Judge, Gobichettipalayam, passed in I.A.No.158/2016 in I.A.No.250 of 2015 in O.S.No.2 of 2007 on 06.04.2016.

2. The suit has been filed by the sister of the petitioner claiming partition. Petitioner is the defendant in the suit. Petitioner has moved I.A.No. 158/2016 in I.A.No.250 of 2015 in O.S.No.2 of 2007, informing intent to amend the application for rejection of plaint.

1. In the heading of original petition amendment to be effected as " Or 7 Rule 11" instead of " Or 7 Rule 11 (b)" and the word to be amended is Rule 11 instead of Rule 11(b), simply by deleting the sub clause (b)

2. For the reasons stated " in anyone of the grounds or grounds raised in toto" in the accompanying affidavit, it is prayed on behalf of the petitioner/defendant, that this Hon'ble Court may be pleased to reject the plaint with cost of defendant and thus render justice. The word to be included as amendment in the first line of the petition after the word for the reasons stated and before the word in the accompanying affidavit as detailed below in the quotes.

" in anyone of the grounds or grounds raised in toto".

Against the dismissal of such application, the present revision is filed.

3. Heard the learned counsel for petitioner and the learned Senior Counsel for respondent.

4. Learned counsel for petitioner submitted that the application has wrongly been termed as one seeking amendment. A reading thereof would show that all that the petitioner sought to do was to raise additional grounds in support of the original petition.

5. Learned Senior counsel appearing for respondent would submit that the amendments sought to be made in the original I.A all found mention in the additional written statement sought to be presented by the petitioner, he having moved an application there towards before the Court below. The tenability of the suit and the question of rejection thereof under Or.7 R.11 have to be decided on the plaint averments and not on defences raised there against.

6. The interim application has been termed as one for amendment. The petitioner in effect has sought to raise additional grounds in support of the original petition under Or.7 R.11.

7. This Court is of the view that it would be appropriate to direct the Court below to treat the application in I.A.No.158/2016 in I.A.No.250 of 2015 in O.S.No.2 of 2007 as one raising additional grounds, permit the same and deal with in I.A.No.250 of 2015 in O.S.No.2 of 2007 moved under Or.7 R.11 on merits after affording an opportunity to the respondent to file a counter to the additional grounds raised.

8. Taking into consideration the submission of the learned Senior counsel for respondent/plaintiff that suit is of the year 2007 and the matter has been unduly protracted, this Court would direct the Court below to dispose of the I.A.No. 158/2016 in I.A.No.250 of 2015 in O.S.No.2 of 2007 as expeditiously as possible and in any event not later that two weeks from the date of receipt of a copy of this order.

Accordingly, the Civil Revision Petition is disposed of. No costs. Connected miscellaneous petition is closed.

07.06.2016.

Index:yes/no Internet:yes To III Additional District and Sessions Judge, Gobichettipalayam.

C.T.SELVAM, J kpr 07.06.2016

C.T.SELVAM, J Today, the matter is listed under the caption "for being mentioned" at the instance of learned counsel for petitioner.

2. Learned counsel for petitioner rightly brings to notice that though while passing orders, this Court had directed the Court below to dispose of I.A.No.250 of 2015 in O.S.No.2 of 2007, such position has not been reflected in the order copy. Instead thereof, a direction to dispose of I.A.No.158 of 2016 in I.A.No.250 of 2015 in O.S.No.2 of 2207 has been informed. Registry is directed to carry out necessary corrections in the order dated 07.06.2016 and issue fresh order copy.

03.08.2016 Note to office:

Issue order copy by 05.08.2016 gm C.T.SELVAM, J gm

03.08.2016