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Madras High CourtCRP/2054/2012dismissed

Komarasamy v. Periyasamy

2016-11-18Honourable Mr Justice V. Parthiban6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 10.11.2016 Delivered on: 18.11.2016

CORAM

THE HONOURABLE THIRU JUSTICE V. PARTHIBAN C.R.P.(PD)No.2054 of 2012 & M.P.No.1 of 2012 Komarasamy .... Petitioner vs

1. Periyasamy

2. Chinnasamhy .... Respondents Civil Revision Petition filed under Article 227 of the Constitution of India against the order of the learned Second Additional Sub Judge, Erode dated 17.2.2012 in I.A.No.398 of 2011 in O.S.No.184 of 2009. For petitioner :

Mr.I.C.Vasudevan For respondent :

No representation

ORDER

This Civil Revision Petition has been filed against the order of the learned Second Additional Sub Judge, Erode dated 17.2.2012 in I.A.No.398 of 2011 in O.S.No.184 of 2009, dismissing the application filed under Order 6 Rule 17 r/w 151 CPC filed by the petitioner herein, seeking amendment of the description of the suit schedule property.

2. Heard the learned counsel appearing for the petitioner and perused the entire material available on record. No representation on behalf of the respondents.

3. The petitioner herein is the plaintiff. He filed a suit in O.S.No.184 of 209 before the learned second Additional Sub Court, Erode, for partition with consequential reliefs. The said suit was resisted by the respondents/defendants by filing a written statement to that effect.

4. According to the respondents/defendants, the father of the plaintiff and defendants had executed a settlement deed and Will in favour of the petitioner/plaintiff and respondents/defendants respectively. According to the settlement deed and Will, the respective parties have been enjoying their properties separately on the basis of said arrangement. The second respondent/second defendant had executed a settlement deed dated 14.5.2009 in respect of a portion of the property in favour of his wife, D.Malliga by way of registered settlement deed vide document No.568 of 2008. The respondents/defendants contended that the joint possession as alleged in the plaint was false and prayed for dismissal of the suit.

5. Pending the suit, the petitioner/plaintiff filed I.A.398 of 2011, seeking permission to amend the plaint on the ground that registered settlement deed in respect of a portion of the property covered under the sale deed dated 2.5.1968 was in his favour and due to oversight, the petitioner/plaintiff sought relief of partition in entirety over the suit properties. Since the property under settlement deed executed in favour of the petitioner/plaintiff, a suitable amendment need to be carried out and to exclude the same from the suit schedule of property for the purpose of partition.

6. A detailed counter statement was filed by the second respondent/second defendant stating that the amendment sought would change the character of the suit particularly for the reason that the proposed amendment in respect of the property was absolutely belonging to Malliga, wife of the second respondent/second defendant and she has been enjoying the property till date and hence, the petitioner had no right to seek proposed amendment in description of the property in the suit. Moreover, said Malliga has not been made as a party in the suit.

7. Taking note of the submissions made on behalf of the parties,

the learned trial Court dismissed the interlocutory application vide order dated 17.2.2012. The learned trial Court has given reasons in paragraphs 7 and 8 of the order, holding that the ownership of the property sought to be excluded from the plaint property at the instance of the petitioner would be a subject matter of the suit proceedings and if the proposed amendment is allowed, that would change the character and structure of the suit. Moreover, an amendment sought at the commencement of trial, was not mentioned in the plaint, which cannot be acceptable, the trial Court reasoned. After recording the reasons, the trial Court dismissed the interlocutory application.

8. Learned counsel appearing for the petitioner reiterated the submissions and on his behalf, an additional document was filed, namely, sale deed dated 25.9.1968. Although there is no representation from the respondents' side. From the perusal of the record and the pleadings, it would be seen that the amendment sought by the petitioner/plaintiff will definitely result in altering the rights of the parties in the suit. Such amendment, therefore, cannot be allowed causing prejudice to the other side. Further, by passing a decree, it is always open to the trial Court to render findings on every aspect in

respect of each portion of the property, whether the same was settled exclusively in favour of one party or the other. Such being the case, there was no necessity for seeking amendment detrimental to the other side. In view of the same, the learned trial Court has rightly dismissed the interlocutory application. This Court finds no infirmity or irregularity in the order passed by the trial Court in I.A.No.398 of 2011 in O.S.No.184 of 2009.

Accordingly, the Civil Revision Petition is dismissed as devoid of merits. No costs. Consequently, connected MP is closed. Internet: yes/no Index: Yes/no 18-11-2016 suk

V.PARTHIBAN, J.

suk Pre delivery Order in CRP PD No.2054 of 2012 18-11-2016 http://www.judis.nic.in