Ravikumar, v. Gengammal,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on 08.08.2023 Pronounced on
CORAM:
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI and CMP(MD)No.5510 of 2022 Ravikumar ... Petitioner Vs.
1.Gengammal
2. Mahalakshmi
3. Usharani
4. Vijayarani 5.Guruvammal ... Respondents PRAYER: Civil Revision Petition filed under Section 151 of the Civil Procedure Code, to set aside the order passed in I.A.No.445 of 2021 in O.S.No.90 of 2012 on the file of the Sub Court, Kovilpatti, dated 05.04.2022. For Petitioner : M/s.T.Lenin Kumar For R1 & R2 : Mr.F.X.Eugene For R3 to R6 : No appearance 1/6
O R D E R
This petition is preferred against the order passed in I.A.No.445/ 2021 in O.S.No.90 of 2012 on the file of the Sub Court, Kovilpatti, dated 05.04.2022.
2. The above suit in O.S.No.90 of 2012 was filed by the petitioner as plaintiff for partition and to allot 1/9th share to the plaintiff. During the pendency of the above suit, the defendants 4 and 5 filed an application in I.A.No.445 of 2021 in O.S.No.90 of 2012 for receiving addition written statement for their share in the suit property under Order 8 Rule 9 CPC. The said application was allowed by the trial Court against which the present revision is preferred.
3.According to the learned counsel for the petitioner, when the case was posted for examination of D.W.1 and D.W.2 by the respondents 1 and 2 they have come forward with an application in I.A.No.445 of 2021 to receive additional written statement to fill up the lacuna. When a specific stand was 2/6
taken by the petitioner that his father the 1st defendant executed a settlement deed, the respondents 1 and 2 and 5 & 6 without examining D.W.1 to D.W.5 filed the application to fill up the lacuna. The trial Court without considering the objection raised by the petitioner in the counter statement, erroneously allowed the application which was filed after a delay of 10 years. He would further submit that the respondents have not cross examined D.W.1 & D.W.2 inspite of several adjournments and the case is posted for defendants side further evidence. Therefore, the reception of additional written statement after commencement of trial cannot be accepted. Hence, the order passed by the trial Court is liable to be set aside.
4.On the other hand, the learned counsel appearing for the respondents/defendants 6 &7 would content that it is a suit for partition and the respondents are the legal heirs of one Aadhilakshmi who died on 26.05.1996. The suit properties are in joint possession of the plaintiffs and defedants 2 to 7 and therefore, the petitioners are entitled to 18/54 share in the suit properties. The trial Court after considering the above facts rightly allowed the application filed by the respondents. 3/6
5. Heard on both sides and records perused.
6.It is is suit for partition and now posted for defendant side further evidence. The respondents who are the defendants 6 & 7 in the suit has come out with an application to receive the additional written statement along with Court fee in respect of their share in the suit properties. In a suit for partition, all parties who are entitled for a share in the properties are necessary parties. Whether, the respondents are entitled for any share in the suit properties, to be decided at the time of trial. Moreover, it is settled law that in a suit for partition the defendants are also deemed to be plaintiff. Therefore, receiving the additional written statement along with Court fee not cause any prejudice to the respondents. Hence, the trial Court has rightly allowed the application which calls for no interference.
7.In the result, the civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. NCC : Yes/No Index : Yes/No 4/6
Internet : Yes cp/vsn To The Subordinate Judge, Kovilpatti.
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K.GOVINDARAJAN THILAKAVADI cp/vsn order made in C.R.P(MD)No.1334 of 2022 and C.M.P.No.5510 of 2022 6/6