Chellammal and Karuppaiah @ Kalimuthu vs Sarasvathi and Others

C.S. Karnan, J.—This petition has been filed by the Petitioners/Defendants 1 and 2 to set aside the order dated 04.08.2010 passed in I.A.

No. 225 of 2009 in O.S. No. 106 of 2007 on the file of the Sub Court, Pattukottai.

The brief facts of the case are as follows:

The Respondent/Plaintiff has filed a civil suit in O.S. No. 106 of 2007 against the Defendants 8 in numbers for partition and separate possession.

At the time of filing the suit, some item of property was not included in the schedule property of the plaint for partition. Only after seeing the patta,

the Respondent/Plaintiff has come to know that the item of property also belongs to the joint family. Hence, an interlocutory application was filed in

I.A. No. 225 o 2009 for including the said item in the schedule property. The said application was opposed by the Respondents, stating that

already the Plaintiff was examined and subsequent to that while the first Defendant was being examined, the said application has been filed at a

belated stage.

On considering the arguments of both parties and on hearing the arguments advanced by the learned Counsels on both sides, the learned Judge

allowed the application for amendment of the schedule mentioned property. Aggrieved by the said decretal order passed in I.A. No. 225 of 2009

in O.S. No. 106 of 2007 dated 04.08.2010, the Petitioners/Defendants 1 and 2 have filed the above revision petition.

The learned Counsel for the Petitioners argued that the said item of property has already been alienated byway of oral sale deed. Therefore, the

application is not maintainable. Further, the partition suit is at the partly heard stage. If the amendment petition is allowed, the character of suit will

be changed. Therefore, the amendment petition is not maintainable.

The learned Counsel for the Respondent/Plaintiff argued that only after knowing that the patta existed, he had filed the amendment petition. If the

amendment petition is allowed, the character of the suit will not be changed since the said item of property is also the subject matter of the partition

and also forms a part of joint family property. The same will be established after adjudication. If the said item of property, is included, the interest

of the Defendants will not be prejudiced. In support of his contention, he cited a judgment in the case of P. Muthu v. Pari reported in 2009 (6)

CTC 25. The relevant portion of this judgment reads as follows:

Code of Civil Procedure, 1908 (5 of 1908), Order 6, Rule 17,- Amendment of Plaintiff -Plaintiff seeking amendment of Plaint, when matter was

posted for judgment -Amendment ordered -Defendant challenging said order by way of Revision -Amendment is only regarding description of suit

property -Defendant will not be prejudiced by proposed amendment -Trial Court has rightly exercised its discretion - Civil Revision Petition

dismissed.

In another judgment in the case of puttamma v. Munusamy reported in 2008 (5) CTC 548. The relevant portion of this judgment reads as

follows:

Code of Civil Procedure, 1908 (5 of 1908), Order 6, Rule 17[as amended by Act 22/2002], - Amendment of Pleadings -Amendment of pleads

after commencement of trial -In partition Suit evidence closed and Suit posed for arguments -After that Petitioners/Plaintiffs filed Amendment

Application praying for deleting properties described in A schedule of Application because of fact that Village Administrative Officer has deposed

that these properties described in B schedule -Application was opposed on ground that Amendment Application would not satisfy Proviso to Rule

17 - Held: Power to allow amendment should be liberally exercised -Aim of allowing amendment is to avoid plurality of proceeding -Amendment

which does not totally alter character of an action ought to be granted as a matter of course - Care should be taken that prejudice or injustice are

not inflicted on other party -Generally speaking there is No. injustice in granting an amendment if opposite party can be compensated in terms of

costs -Undoubtedly, it is the discretion of Court to allow an Amendment Application or not -Litigant should not be refused fair and just relief

merely because of some negligence, mistake or inadvertence or even infraction of rules of procedure - Amendment allowed.

In view of the facts and circumstances of the case and after hearing the arguments of the learned Counsels and on perusing the impugned order

of the learned Judge and perusal of the citations cited by the learned Counsel for the Respondent, this Court is of the considered opinion that if the

amendment petition for including the said item of property in the schedule mentioned property of the plaint, the character of the suit will not be

changed and the interest of the Defendants will not be prejudiced. Further, the partition suit can be decided on the basis of title deeds and oral

evidence. Therefore. the civil revision petition deserves to be dismissed. Accordingly, it is dismissed and the order and decretal order passed in

I.A. No. 225 of 2009 in O.S. No. 106 of 2007, dated 04.08.2010 on the file of the Subordinate Court, Pattukkottai is confirmed, on condition,

that the Plaintiff shall pay a sum of Rs. 1,500/- (Rupees one thousand and five hundred only) as costs to the Defendants within a period of four

weeks from the date of receipt of this order. This Court further opines that the learned Judge, without being influenced by this Court''s discussion,

shall dispose the case on merits, as expeditiously as possible.

Resultantly, the above civil revision petition is disposed of with the condition that the Plaintiff shall pay the costs to the Defendants.

Consequently, the order and decretal order passed in I.A. No. 225 of 2009 in O.S. No. 106 of 2007 on the file of the Subordinate Court,

pattukottai, dated 04.08.2010 is confirmed.