G. Elumalai vs G. Venkatesan and Others

S. Rajeswaran, J.—The above Civil Revision Petitions are filed against the Orders dated 29.06.2007 passed in I.A. Nos. 351 and 352 of

2007 in O.S. No. 89 of 2004 on the file of the Additional District Judge, Fast Track Court No. III, Poonamallee.

The plaintiff in O.S. No. 89 of 2004 is the revision petitioner in both the petitions.

O.S. No. 89 of 2004 has been filed by the Revision petitioner/plaintiff for partition of Item No. 4 of the suit properties by metes and bounds into

equal shares and allot to the plaintiff one such share.

Written statement has been filed by the first defendant/first respondent herein and after trial, the suit was argued by both the parties. Thereafter,

when the matter was adjourned by the trial court for passing judgment, the revision petitioner/plaintiff filed two applications i.e., I.A. No. 351 of

2007 to re-open the suit and I.A. No. 352 of 2007 to amend the plaint to include an alternative prayer of recovery of possession of Item No. 5 of

the suit properties. Both the applications were resisted by the first respondent herein by filing a counter statements. The trial court by order dated

29.6.2007 dismissed both the applications and aggrieved by the same, the plaintiff in the suit has filed the above revision petitions.

Heard the learned Counsel appearing for the revision petitioner and the learned Counsel appearing for the first respondent. I have also gone

through the documents and judgments filed in support of their submissions.

The case of the revision petitioner in O.S. No. 89 of 2004 is that, after the death of his father, in the year 1997, there was a compromise among

the legal heirs, according to which, the first item of the suit property was allotted to the plaintiff and items 2 to 4 were allotted to the first

defendant/first respondent herein. It was further agreed that the Revision petitioner has to pay Rs. 2 lakhs to the first respondent herein to take item

No. 5 and a portion of item No. 6. The remaining portion in Item No. 6 was allotted to the defendants 2 to 4 who are the sisters of the revision

petitioner and the first respondent herein. As the title deed is standing in the name of the first respondent herein in respect of item No. 5 and a

portion of item No. 6, the first respondent herein executed a power of attorney deed dated 26.10.1998 in favour of the revision petitioner. On the

basis of the power of attorney, the revision petitioner conveyed a portion of item No. 6 of the suit property to one Arokiaswamy. But, the first

respondent herein was not co-operating as per the agreement and anticipating some non-cooperation from the first respondent and apprehending

that the first respondent would go back on the understanding entered into between the parties, the revision petitioner executed a sale agreement in

favour of his wife to protect the revision petitioner''s interest and to prevent the first respondent from creating any encumbrance. According to the

revision petitioner, he has to pay Rs. 2 lakhs only after selling item No. 5 of the suit property. But, the first respondent cancelled the power of

attorney deed and therefore, he could not sell item No. 5 of the suit properties. As the power of attorney was cancelled, now, the revision

petitioner is entitled for half share in item No. 5 of the suit property and hence, the revision petitioner filed O.S. No. 123 of 2000 (later on re-

numbered as O.S. No. 89 of 2004) seeking partition of his half share in item No. 5 of the suit property.

According to the first defendant i.e., the first respondent herein, the suit properties were purchased by him by two different sale deeds and

therefore, they belong to him absolutely. He denied that the properties are joint-family properties as contended by the revision petitioner. He also

denied the compromise as alleged by the revision petitioner. The first respondent admitted that he cancelled the power of attorney as the revision

petitioner failed to pay the sale consideration of Rs. 4,80,000/-. It is further stated by him in the written statement that the power of attorney was

given to the revision petitioner as the first respondent is employed. Hence, he prayed for the dismissal of the suit.

It is an admitted position that the trial was completed and the arguments were heard and the suit was adjourned for passing judgment. At that

stage, I.A. Nos. 351 and 352 of 2007 were filed to re-open the suit and to amend the plaint and it was dismissed by the trial court holding that no

grounds have been made out by the revision petitioner to re-open the suit and also to amend the plaint.

In the affidavit filed in support of these two applications, it was stated by the revision petitioner that by mistake and inadvertance, the alternative

prayer for recovery of possession of Item No. 5 of the suit property was not sought for by him and this mistake came to light when he was

discussing the matter with his advocate while preparing the arguments. Excepting this, no other reasons have been given by the revision petitioner

for re-opening the suit and also for amending the plaint to include the alternative prayer of recovery of possession of Item No. 5 of the suit

property. Therefore, in my considered view, the trial court is right in dismissing the applications especially when the suit was adjourned for passing

judgment.

Though the learned Counsel for the Revision petitioner relied on the following judgments reported in

Shri Lakhi Ram (Dead) Through Lrs. Vs. Shri Trikha Ram and Others,

2002 4 C.T.C. 189 (Sampath Kumar v. Ayyakannu and Anr.)

Saraswathi Ammal Vs. Ponnammal and another, ,

I find that the facts involved in those judgments are totally different and they do not support the case of the revision petitioner.

In Shri Lakhi Ram (Dead) Through Lrs. Vs. Shri Trikha Ram and Others, , the Hon''ble Supreme Court held that the amendment sought for in

that case could be allowed by the Appellate Court in as much as the amendment does not change the cause of action. In the above decision, the

plaint was filed for a specific performance of contract for sale of suit lands. The suit was decreed by the trial court and the matter was carried on in

appeal. Pending appeal, the plaintiff moved an application for amending the plaint seeking introduction of the averment regarding his readiness and

willingness to perform his part of the contract. That amendment was granted by the Appellate Court, but, the High Court took the view that such

proposed amendments could not have been granted as it would displace the defence of the defendants and consequently, the order of the

Appellate Court allowing the amendment was set aside. When that order of the High Court was challenged before the Hon''ble Supreme Court in

that context, the Hon''ble Supreme court held that such amendment could be allowed by the Appellate Court as it does not change the cause of

action.

In 2002 4 C.T.C. 189 (cited supra), the Hon''ble Supreme Court held that pre-trial amendments are to be allowed more liberally than

amendment after commencement of trial.

Admittedly, in the present case, not only the trial has commenced, but, it was also completed and the suit itself was adjourned for passing

judgment. If that being so, there should be very strong reasons that should be put forward by the party seeking amendment of the suit. It is not the

case of the Revision petitioner that the possession was taken over by the first respondent herein pending suit. It is an admitted fact that the

possession has been with the first respondent even at the time of instituting the suit. Therefore, I hardly find any reasons for allowing such

amendment, that too, when the suit was posted for passing judgment.

In 2003 C.T.C. 710 (cited supra), this Court allowed the prayer for amendment in the second appeal stage considering the fact that the

plaintiff was dispossessed during pendency of suit. Such is not the position in the present case and therefore, the revision petitioner cannot draw

any support from this judgment.

In the result, I do not find any merits in the above revision petitions and consequently, they are dismissed. No cost. Connected miscellaneous

petitions are also dismissed.