A.A. Ganga and A.A. Radhika vs A.R. Usha and Others

R.S. Ramanathan, J.—Heard both sides

The respondents 1 and 2 in this civil revision petition filed the suit O.S. No. 282 of 2004, on the file of the Additional District Judge, Fast Track

Court No. 1, Madurai, for partition of 1/4th share in the suit property and for rendering of accounts by the defendants 1 to 9 in the suit.

The case of the respondents 1 and 2 was that the suit properties belonged to Late A.R. Sahasranam, father-in-law of the 1st plaintiff and

defendants 4 to 8 and the father of the defendants 1, 10 and 11 and the grand- father of the 2nd plaintiff and defendants 2,3,5,6,7 and 9. He died

intestate and therefore, the plaintiffs and the defendants 1 to 9 are entitled to a share in the property and the parties are enjoying the property. It is

further stated that the said A.R. Sahasranam left a Will, dated 06.03.1961 in respect of Item Nos. 1 and 3 and the 2nd item of the suit property

was inherited by the plaintiffs and the defendants 1 to 9 and all of them are equally entitled to a share in the suit property and the plaintiffs are

entitled to 1/4th share. It is further stated that Late A.R. Sahasranam was running a business in the name of ''Sarathi Textiles'' and Venkateswara

Chem Dyes, which were constituted as partnership firm and after the retirement of various partners, the husband of the first respondent Late A.S.

Ramesh and the 2nd defendant were carrying on the partnership business and after the death of the husband of the first plaintiff, the 2nd defendant

continuing the partnership business and by dissolution deed, dated 31.03.1989, the 2nd defendant retired from the partnership business after

receiving his shares and the first plaintiff is carrying on the textile and Chem Dyes business as proprietrix and she is the absolute owner of the said

business. The 1st item of the suit property is in possession of the defendants 1 to 9 and they let out the same for marriage functions and they are

liable to account for the same. The 3rd item of the suit property is also getting monthly rent of Rs. 5000/- and the defendants 1 to 9 are enjoying

the same and they are liable to account for the same. The 2nd item of the property is the Company shares. According to the plaintiffs, they are

entitled to 1/4th share in the Item Nos. 1 and 3 and 1/5th share in the 2nd item of the suit properties and filed the suit for partition and the revision

petitioners viz., the defendants 8 and 9 filed the statement disputing the claim of the plaintiffs and also denied the execution of the Will by Late A.R.

Sahasranam. The revision petitioners also denied the right of the first plaintiff over the assets of Sarathi Textiles and Venkateswara Chem Dyes. It

is admitted by the revision petitioners that the defendants 1 to 9 are residing in a small portion of the 1st item of the suit property and the remaining

portion was not let out for marriage functions and therefore, they are not entitled to ask for the accounts. They also stated that the defendants 4 to

9 have already filed a suit for partition in O.S. No. 411 of 1992, on the file of the II Additional Sub Judge, Madurai and the present suit is filed by

the plaintiffs for partial partition and the business of ''Sarathi Textiles'' and Venkateswara Chem Dyes and the assets are also liable for partition as

they are also joint family of the business. They also denied the allegations about the dissolution of the partnership of Sarathi Textiles and

Venkateswara Chem Dyes and have contended that those properties are also to be included for partition and the suit for partial partition is not

maintainable.

In the above suit, trial commenced and on the side of the plaintiffs, two witnesses were examined and evidence was closed on both sides and

the case was posted for arguments on 04.09.2008 and at that time, the revision petitioners herein filed I.A. No. 114 of 2008 to include some

properties, which according to them also belongs to the joint family of the plaintiffs and the defendants 1 to 9 and stated that during cross

examination, PW1 admitted that Late A.S. Athmacharan, the husband of the 8th defendant was a partner in M/s. Sarathi Textiles situate at Door

No. 9 East Veli Street, Mission Hospital Compound, Madurai and Exs.A5 to A8 also reveal that Sarathi Textiles Show Room situate in Door No.

163, South Masi Street, Madurai, belongs to M/s. Sarathi Textiles and her husband was having a share and her husband has not retired from the

partnership firm and no accounts were settled and therefore, those properties must also be included in the suit for partition. The plaintiffs, namely

the respondents 1 and 2 herein disputed the claim of the revision petitioners stating that the assets of partnership firm viz., Sarathi Textiles and

Venkateswara Chem Dyes were settled among the partners and the husband of the 8th defendant viz., A.S. Athmacharan retired from the

partnership firm and therefore, they are not entitled to any share in those properties and they are the exclusive properties of the plaintiffs and the

other defendants 1 to 7 also supported the case of the plaintiffs/respondents 1 and 2.

The learned District Judge dismissed the application stating that Order 6 Rule 17, prohibits the filing of amendment application after the

commencement of the trial, unless the party is able to satisfy, despite due diligence, he was not in a position to file the application and no such

averment was made and even in the written statement, they have stated all those details and no steps were taken by the revision petitioners to file

the application before the commencement of trial and the petition was filed belatedly. The learned District Judge further went to the merits of the

claims of the revision petitioners and held that the first plaintiff and the 2nd defendant became the absolute owners of the said two firms and the first

plaintiff alone discharged more than 14 lakhs towards loan payable by the said partnership firm and the liabilities are met only by the plaintiffs and

the properties, which are sought to be included are not at all connected with the family and the plaintiffs are already in possession of those

properties and the proposed amendment will delay the partition case. Aggrieved by the same, this civil revision is filed by the revision petitioners

herein.

It is contended by the learned Counsel appearing for the revision petitioners that the respondents 1 and 2 filed a suit for partition and according

to the revision petitioners, the properties which are sought to be included in the plaint schedule are also joint family properties and it was also

mentioned in the written statement and if those properties are not included, the suit may fail for partial partition and whether the properties to be

included by way of amendment belongs to the joint family of the plaintiffs and the defendants 1 to 9 can be decided only in trial and that should not

have been decided in that application and by allowing the amendment, all disputes will be put to an end and it is in the interest of parties, that

amendment is to be allowed. In support of his contention, the learned Counsel appearing for the revision petitioners relied upon the judgment of

this Honourable High Court reported in 2008 (7) MLJ 1210, in the case of P. Arumugham and Anr. v. P. Balasubramaniam and Ors. wherein it

has been held that in a suit for partition, the Courts have got power to direct that items, which are left out also included in the partition, once

evidences are available that those properties also belong to the joint family of the parties.

On the other hand, the learned Counsel appearing for the respondents relied upon the judgment of this Honourable Court reported in 2005 (3)

MLJ 663, in the case of Ramasamy and Anr. v. P. Marappan and Ors. and submitted that the plaintiff is the dominus litus and he cannot be

compelled to include other items of properties in the plaint schedule and if the petition mentioned properties, which are sought to be included in the

plaint schedule are proved to be joint family properties, the suit would only be bad for partial partition and on that score, the defendants can not

seek for amending the plaint to include the properties mentioned in the application for amendment and no direction could be given to the plaintiffs

to include some more items of the property in the plaint. He, therefore, submitted that the properties, which are sought to be included in the plaint

schedule are not joint family properties and at any rate, the trial has commenced and evidence was closed and at that stage, the application for

amendment cannot be entertained and it is clearly prohibited under Order 6 Rule 17 CPC.

I have given my anxious consideration to the submission made by both the counsels.

Admittedly, the suit is for partition. In a suit for partition of joint family properties, each parties are the plaintiffs and the defendants are also

entitled to claim share by paying necessary court fee and therefore, in a suit for partition, it cannot be stated that the defendants are not entitled to

include some other properties, which according to them, are liable to be partitioned among the parties. In a suit for partition, if some properties are

not included in the suit and if those properties are also liable to be partitioned, it is open to the defendants to file an application to include those

properties in the plaint schedule and contend that those properties are also liable for partition and hence, the normal rule that the plaintiff is the

dominus litus and he has to decide, which party is to be impleaded and which properties are to be included is not applicable to the case for

partition of joint family properties or joint properties owned by the parties. Therefore, with great respect, to the learned Judge that it cannot be

stated that in a suit for partition, the plaintiff is the dominus litus and he cannot be compelled to include other items of the property in the plaint

schedule as laid down in the judgment reported in 2005(3) MLJ 663 in the case of Ramasamy and Anr. v. P. Marappan and Ors.

In the case of 2009 (13) Scale 241, in the case of Revajeetu Builders and Developers v. Narayanasamy and sons, the Apex Court has

considered the scope of Order 6 Rule 17 CPC and has given certain guidelines and they are follows:

Whether the amendment sought is imperative for proper and effective adjudication of the case?

Whether the application for amendment is bona-fide or mala-fide?

The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money?

Refusing amendment would in fact lead to injustice or lead to multiple litigation?

Whether the proposed amendment constitutionally or fundamentally change the nature and character of the case; and

As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of

application?

The Honourable Supreme Court in the case of Vidyabai and Others Vs. Padmalatha and Another, held as follows:

it is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if

such a condition is fulfilled, the amendment is to be allowed. However, Proviso appended to Order 6 Rule 17 of the Code restricts the power of

the Court. It puts an embargo on exercise of its jurisdiction. The Court''s jurisdiction, in a case of this nature is limited. Thus, unless the

jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the Plaint.

Further in the judgment reported in North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., , in the case of North

Eastern Railway Administration, Gorakhpur v. Bhagwan Das (died) by Lrs., it has been held as follows: ""Inso far as the principles which govern

the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C (as it stood at the relevant time) are concerned, these are well

settled. Order 6, Rule 17 C.P.C postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda

Shidgonda Patil, which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working

injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties.

Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but

the amendment would cause him an injury which could not be compensated in costs. (Also see Gajanam Jaikrishna Joshi v. Prabhakar Mohanlal

Kalwar).

Further in the judgment reported in Usha Devi Vs. Rijwan Ahamd and Others, the Honourable Supreme Court has held that the merit of the

amendment is not a relevant consideration for allowing prayer for amendment.

In the judgment reported in 2008(14) SCC 364, in the matter of Rajkumar (Dead) through Lrs. v. S.K. Shrwagi and company Private Ltd.

and Ors., the Honourable Supreme Court held that in case of amendments, after the commencement of trial, particularly after the completion of

evidence, the question of prejudice to the opposite party may arise and in such an event, it is incumbent on the part of the Court to satisfy the

conditions prescribed in the proviso to Order 6 Rule 17 CPC and if the parties are able to satisfy the Court that in spite of the due diligence they

could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after

the commencement of trial.

Therefore, as laid down by the Honourable Supreme Court, even after the amended Act of 2002, there is no total bar for allowing the amendment

after the commencement of trial and if the parties are able to satisfy the requirement as contemplated as per proviso Order 6 Rule 17 CPC, the

amendment can be allowed. In this case, the revision petitioners raised this issue in the written statement.

As state supra, in a suit for partition, all the properties are to be partitioned and as laid down by the Honourable Supreme Court in the

judgment reported in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, , amendment can be allowed for proper and

effective adjudication of a case and refusing the amendment would lead to the multiplicity of proceedings. In this case, admittedly there were some

lathes on the part of the revision petitioners in filing the application for amendment earlier, but considering the interest of the parties and to avoid

multiplicity of proceedings and being a suit for partition, in my opinion, the petition filed by the revision petitioners for amendment to include some

other properties in the plaint stating that they are also liable to be partitioned can be allowed as that would put to an end to the litigation and it

would also avoid the multiplicity of proceedings. Further, while allowing or disallowing the amendment application, the Court should not go into the

merits of the amendment and the lower Court has committed an error in deciding the merits of the amendment and held that the properties, which

are sought to be included are the properties exclusively belong to the plaintiffs 1 and 2. Therefore, without going into the merits, whether the

properties, which are sought to be included in the plaint schedule by way of amendment belongs to the joint family of the plaintiffs and the

defendants, in a suit for partition, the parties are entitled to bring to the notice of the Court about the properties to be included for partition.

Further, no prejudice would be caused to the respondents and the respondents can be permitted to file the additional written statement and can

also be permitted to cross examine the witnesses and hence, the respondents would not be prejudiced by allowing the amendment.

In the result, the order of the lower Court is set aside and the plaintiffs and the other defendants are permitted to file the additional pleadings in

respect of the properties, which are to be included in the aforesaid schedule and the parties are also entitled to let in evidence and the lower Court

is also directed to complete the above exercise within a period of six months from the date of receipt of a copy of this order. Accordingly, this civil

revision petition is allowed. Consequently, connected Miscellaneous Petitions are closed. No costs.