Anim-adverting upon the order dated 1.4.2008 passed in C.M.A.No.17 of 2007 by the Subordinate Judge, Panruti, reversing the order dated 10.8.2007 passed in I.A.No.320 of 2006 in O.A.No.81 of 2006 by the District Munsif, Panruti.
2. A 'resume' of facts, which are absolutely necessary and germane for the disposal of the civil revision petition, could be portrayed thus:
The revision petitioner/plaintiff filed the suit O.S.No.81 of 2006 seeking the following reliefs based on the 'Will' executed by his father in his favour:
a. to declare that the plaintiff is title over the suit properties as absolute owner;
b. by passing consequently an order of permanent injunction restraining the defendant or his men or agents from trespassing into the suit properties in any manner;
c. to direct the defendant to pay the cost of the suit to the plaintiff The petitioner/plaintiff also filed I.A.No.320 of 2006 seeking interim injunction as against his brother-the defendant from interfering with the petitioner's peaceful possession and enjoyment of as many as six item of suit properties, including one house property. Being aggrieved by such interim injunction order, the respondent/defendant filed C.M.A.No.17 of 2007 before the Subordinate Judge, Panruti, which Court set aside the order of the lower Court in granting injunction. Being dissatisfied with and aggrieved by the said order of the appellate Court, this revision is focussed on various grounds.
3. The learned counsel for the revision petitioner/plaintiff would develop his argument to the effect that the trial Court correctly considering the 'Will' as well as the tax receipts and other evidence available on record granted injunction; whereas the appellate Court, without going into the salient features of the case dealt with by the lower Court, simply carried away by the plea of the respondent/defendant that the properties are all joint family properties and that no injunction could be granted; the kist receipts filed by the petitioner/plaintiff would evidence the right and enjoyment of the petitioner/plaintiff over the suit properties. Accordingly, he prays for injunction.
4. Whereas, the learned counsel for the respondent/defendant, inviting the attention of this Court to the order of the lower Court, would develop his argument that shortly before the filing of the suit, the kist receipts in favour of the petitioner/plaintiff emerged and based on that the trial Court simply held as though the exclusive possession of the suit properties was with the petitioner/plaintiff and granted interim injunction.
5. The learned counsel for the respondent/defendant also would submit that already a suit for partition has been filed; the 'Will' dated 11.9.2003, which the petitioner/plaintiff relies on, emerged in dubious circumstance, as after the cancellation of the earlier 'Will' dated 22.12.1989, as per the cancellation deed dated 15.2.1996; the testator, i.e. the father of the parties, namely, Kaliaperumal, died on 20.9.2006, shortly after the emergence of the said new 'Will' dated 11.9.2003, in favour of the petitioner/plaintiff.
6. Put simply, the parties got themselves locked up in litigation i.e. one suit for partition and another for declaration and injunction. Hence, in such a case, ex facie and priama facie, I could see no material irregularity or wrong exercise of jurisdiction on the part of the Sub Court in setting aside the order of the lower Court. The lower Court, in fact, was carried away only by the 'Will' dated 11.9.2003 as well as the kist receipts and the observation of the lower Court as though the respondent/defendant has not proved that the properties are joint family properties, in my opinion, is unwarranted, as at the stage of interim application, the question of proof that the properties are joint family properties, will not arise at all. Wherefore, I am of the view that the order of the appellate Court, namely, Sub-Court, Panruti, cannot be set aside.
7. However, the learned counsel for the respondent/defendant has made a submission that the possession of the petitioner/plaintiff may not be disturbed.
8. I am of the view that even though injunction cannot be granted in favour of the petitioner/plaintiff restraining the respondent/defendant from interfering with the suit properties, since the petitioner/plaintiff, as per the other side, is a co-owner of the suit properties, the petitioner/plaintiff's possession relating to house property should not be disturbed by any one and with this observation the civil revision petition is disposed of.
9. The learned counsel for the petitioner/plaintiff also would make an extempore submission that the appellate Court made various observations as against the petitioner/plaintiff, which would be against the petitioner/plaintiff at the time of trial.
10. I am of the view that during trial, the trial Court shall consider only the evidence that would be placed before the trial Court dehors the findings and observations in the interim orders passed by the Courts, including the High Court.
11. In these factual matrix, the trial Court is directed to take up both the suits, namely, the suit for partition and the suit for declaration and injunction for joint trial and dispose of the same within a period of four months from the date of receipt of copy of this order.
12. Accordingly, the civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
The petitioners/defendants filed the written statement. When the trial was proceeding on the petitioners/defendants' side, the respondent/plaintiff has chosen to file I.A.No.433 of 2008 seeking the following amendments:
"5. . . . vdJ tHf;Fiuapd; brhj;J tpguj;jpy; rh;nt vz;/218-7 y; 0.08 brd;l; vd;W ,Ug;gij giHa rh;nt vz;/217 ,jw;F g[jpa rh;nt 497-8 vd;W jpUj;jk; bra;a ntz;oaJ mtrpaKk;. EpahaKkha; ,Uf;fpwJ/ ,e;j tHf;F 01/07/2002 f;F Kd;g[ jhf;fy; bra;ag;gl;lJ/ vdnt rl;lg;go jil vJt[k; ,y;iy/ rh;nt vz; khWtjhy; brhj;J khwtpy;iy/ g[jpa tHf;Fk; my;y/ vdnw nkw;go rh;nt bek;giu jpUj;JtJ vd;gJ ePjpapd;ghw;gl;ljhFk;/ nkw;go rh;nt vz;iz jpUj;jk; bra;gjhy; ahUf;Fk; ve;jtpjkha ,Hg;g[k; fpilahJ/ nkw;go rh;nt vz; jl;lr;R gpiHahy; Vw;gl;litahFk;/ ,J kd;dpf;ff;Toa rpW gpiHahFk;/@ The trial Court allowed the said I.A. Being dissatisfied with and aggrieved by the said order, this revision petition is focussed on various grounds.
3. The learned counsel for the revision petitioners/defendants would develop his argument to the effect that this is not a simple case of changing the survey number from 218 to 217 due to typographical error, but it is a case of changing the entire cause of action; the entire defence was based on the said survey number only already existing in the plaint schedule.
4. Whereas the learned counsel for the respondent/plaintiff would develop his argument that he is yet to verify as to whether the patta in favour of the respondent/plaintiff's predecessors was 218/7 or 217.
5. In my considered opinion such a doubt could not arise at this stage for the reason that P.W.1-Murugesan, in his deposition itself clearly stated that the patta in favour of the respondent/plaintiff refers to 218/7. In this factual matrix, I am of the view that it is not a simple case of getting corrected the typographical error. If there is only a clerical mistake or typographical error, the same could be corrected, dehors Order 17 Rule 6 also. However, at this juncture, my mind is reminiscent of the the decision of the Honouraqble Apex Court:
2008(4) TLNJ 588(CIVIL)- VIDYABAI AND OTHERS VS. PADMALATHA AND ANOTHER, certain excerpts from it would run thus:
"7 to 36"
6. A bare perusal of the recent judgement of the Honourable Apex Court would demonstrate and exemplify that after the commencement of the trial, the question of pressing into service Order 17 Rule 6 does not arise at all. As such, applying the said dictum, it is crystal clear that the lower Court, ignoring the mandates contemplated under Order 17 Rule 6, simply allowed it. As such, on that technical ground itself, the order of the lower Court is liable to be set aside.
7. Even on merits of the case, I would like to observe that the averments in the plaint as well as oral evidence adduced so far on the side of the respondent/plaintiff proceeded on the line that the respondent/plaintiff's predecessors in title were in possession and enjoyment of Survey No.218/7. Now at the time of commencement of trial on the petitioners/defendants' side, the respondent/plaintiff seek to introduce a new cause of action virtually that the respondent/plaintiff's predecessors were in possession and enjoyment of Survey No.217, over which, the petitioners/defendants are claiming title and to that effect they filed written statement and also adduced evidence partly. Hence, in such a case, it is quite obvious that allowing of such amendment by the lower Court is totally against law and accordingly, the order dated 21.4.2008 passed in I.A.433 of 2008 is set aside.
8. In the result, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
Msk 12.1.2009 Index:Yes/No Internet:Yes/No. To The Additional District Munsif, Villupuram C.R.P.PD.1876 of 2008 9.1.2009