IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 02.09.2016 Pronounced on 27.01.2017 CORAM THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN CRP(NPD)No.1523 of 2013 1.C.Ramasamy (deceased) 2.R.Thangavelu 3.Kannamma .. Petitioners (3rd Petitioner brought on LRs of the deceased the 1st petitioner vide order of Court dated 11.12.2015 made in MP.No.1 of 2015 in CRP.No.1523 of 2013) Vs.
1.K.Palanisamy 2.P.Manickam 3.K.M.Selvakumar 4.M.Balusamy
5. Ammani @ Pappal ..Respondents Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order of the II Additional District Munsif Court at Erode, dated 27.02.2013 in I.A.No.9 of 2013 in O.S.No.589 of 2010 inter-alia.
For Petitioners : Mr.P.Valliappan For Respondents : Mr.V.S.Kesavan (for R1 and R2) No Appearance (for R3 to R5) O R D E R The undisputed fact leading to the present civil revision petition is as detailed below:
The Revision petitioners has filed a suit against the respondents herein in O.S.No.589/2010 for the relief of the Plaintiff’s title to their undivided 1/3rd share in the suit property and cancellation of sale dated 09.09.1999 and 13.03.2010 as null and void. The petitioners herein stated that the suit property belonged to the 1st petitioner’s father namely Chenni Mooppan. The said Chenni Mooppan, the father of the 1st plaintiff and one Marimuthu, who is the father of the 1st and 2nd defendants in the suit. The said Chenni Mooppan had mortgaged his property, under the registered mortgage deed dated 22.08.1979, in favour of the 1st plaintiff. The said mortgage was not redeemed. The 1st plaintiff, late Marimuth and 4th defendant are entitled to 1/3 share in the suit property. The 1st defendant deemed to have purchased to an extent of 0.75 cents from the 1st and 2nd defendant. Therefore the deceased Marimuth, filed a suit in O.S.No.573 of 2007 on the file of the District Munsif Court, Erode for partition against the 1 and 2nd defendant herein. After that the 1st plaintiff and 4th defendant filed an impleading petition and the same was allowed. Thereafter the 5th defendant purchased the suit property from the deceased Marimuth under a registered Sale deed dated 12.03.2010.
2. The 5th defendant filed written statement and contented that the plaintiffs have no right to file the suit against him. The trial was commenced and the plaintiff’s side evidence was closed. After the examination of DW-1, the case is posted for defendant’s further evidence. During the course of cross examination of DW-1, he admitted that the 1st plaintiffs are entitled to 76 ½ cent i.e., the plaintiffs are entitled to ½ share in the suit property.
3. It is the further case of the revision petitioners that after the evidence of DW-1, it necessitated the plaintiffs to file a petition to amend the plaint in I.A.No.9/2013, for a declaration, to declare that they are entitled to ½ share in the suit property, instead of 1/3 share in the suit property. The 2nd respondent/5th defendant filed counter which was adopted by the 1st respondent stating that the fact of proposed amendment is well known to the plaintiffs even at the time of filling the suit itself. The plaintiffs will have to file an application to reopen the case first, since their evidence was closed and the suit is posted for the further evidence of the defendants.
4. On perusal of records and arguments on both sides, the learned Judge dismissed the said I.A.No.9/2013 by order and decree dated 27.02.2013 on the ground that the revision petitioners/plaintiffs filed amendment petition with a malafide intention and the proposed amendment is not necessary for the effective adjudication of the suit. The proposed amendment would change the character of the suit. As against the dismissal of amendment application, the present Civil Revision Petition is filed by the Petitioners/Plaintiffs.
5. I heard Mr.P.Valliappan, learned counsel appearing for the petitioners and Mr.V.S.Kesavan, learned counsel appearing for the respondents 1 and 2 and perused the entire records.
6. During the course of cross examination on the defendant’s side, 5th defendant was examined as DW-1 and he has admitted that the Revision petitioners/Plaintiff’s having ½ share in the suit property and the plaintiffs have purchased property from the 4th defendant to an extent of 25 cent and therefore the 5th defendant/DW-1 has no objection to the plaintiffs claiming their ½ share in the suit property.
Hence, the civil revision petitioner/plaintiffs have filed a petition to amend the prayer to declare that they are entitled to ½ shares instead of 1/3 share, in the suit schedule of property.
7. On hearing both sides, the learned trial Judge has dismissed the application by holding that the property sought to be included in the proposed amendment absolutely belonged to the 2nd plaintiff and the 2nd plaintiff has no role or share in the suit property and hence no purpose would be served in allowing the amendment application.
8. It is a settled principle of law that while deciding the amendment application, the merits of the suit can’t be decided and the same can be decided only after trial in the suit. Therefore the finding of the trial court is not sustainable. With regard to the above said proposition of law, the Full Bench of this Hon’ble Court in a detailed Judgment reported in 2006 (5) CTC 609 held that the court should not, while considering petition for amendment, go into correctness or falsity of case and it should not record finding on merits of amendment as they should be done only during trial of suit. Applying the above said principles of law, this civil revision petition is to be allowed. Accordingly, this Civil Revision Petition is allowed.
9. It is well settled in law that the amendment can be filed at any stage but the said amendment could not be changed the character of the suit. The above said full Bench Judgment is squarely applicable to the case on hand since in my considered opinion, the proposed amendment would not affect the character of the suit. By allowing the amendment no prejudice would be caused to the defendants.
10. In the result:
(a) This Civil Revision Petition is allowed by setting aside the order in I.A.No.9 of 2013 in O.S.No.589 of 2010, dated 27.02.2013, on the file of the II Additional District Munsif, Erode.
(b) The trial Court is directed to take necessary proceedings for carry out the amendment and the defendants are hereby permitted to file their additional written statement, if any, within a period of 15 days thereafter.
(c) After filing the additional written statement within the time stipulated by this Court, the trial Court is directed to dispose the suit within a period of three months without giving any adjournments to either parties.
11. Accordingly, this civil revision petition is allowed. No costs.
27.01.2017 Index:Yes/No Internet:Yes/No vs To The II Additional District Munsif, Erode.
M.V.MURALIDARAN, J.
vs
Pre-Delivery order made in CRP(NPD)No.1523 of 2013
27.01.2017