The revision has been filed by the second plaintiff in the suit, challenging the dismissal of the order passed in I.A.No.141 of 2007 in O.S.No.34 of 2006 dated 12.08.2008, on the file of the District Munsif, Pattukkottai.
2. The petitioner herein is the second plaintiff in the suit. The suit has been filed for the relief of declaration and permanent injunction. The suit has been based upon the registered partition deed. A written statement has been filed by the first defendant stating that the suit property has been purchased by the first defendant from the second defendant and his father on 07.01.1996. Thereafter, the petitioner has filed the present application seeking to amend the prayer to set aside the sale effected by the second defendant and his father in favour of the first respondent herein on 07.01.1996. The said application was dismissed by the Court below. Challenging the same, the revision has been filed by the petitioner/2nd plaintiff.
3. The learned counsel for the petitioner submitted that the suit has been filed based upon the registered partition deed for declaration and permanent injunction. There is no change in the cause of action and the petitioner has not filed any new case. It is only because the defendants relied upon the sale deed, the petitioner has chosen to file an application to amend the prayer in order to get over the technical objections. According to the petitioner, only after exchange of notice between the parties in the year 2006, they came to know about the sale but even then they did not have the particulars regarding the sale deed and hence, the present application ought to have been allowed by the Court below which is necessary for deciding the dispute between the parties. It is further submitted that no prejudice would be caused to the respondents by allowing the petition. The learned counsel relied upon the judgment reported in 2009 (2) CTC 387 (C.V.Rambabu Vs. V.C.Jayanthi) to contend that the question of limitation raised by the defendants in an application seeking amendment of plaint can be decided latter. Therefore, the learned counsel prayed for allowing the revision.
4. The learned counsel for the respondents submitted that the document in favour of the first respondent has been executed as earlier as on 07.01.1996. Therefore, the proposed amendment is barred by limitation. According to the learned counsel, the first respondent has purchased the property from the second respondent and his father, who got the said property in pursuant to the very same partition deed relied upon by the petitioner. The learned counsel submitted that under those circumstances, it is not necessary to allow the petition.
5. In the present case, on mere reading of the averment would show that the petitioner has come to know about the sale deed in favour of the first respondent only after exchange of notice. Only after filing written statement, the petitioner has come to know about the date of the sale deed. It is not in dispute that the suit has been filed based upon the registered partition deed. Therefore, it cannot be said that the petitioner is introducing a new case. The petitioner cannot also be said to have deliberately not challenged the sale deed dated 07.01.1996. According to the petitioner, they have come to know about the sale deed only in the year 2006 and in any case, the Interlocutory Application has been filed on 08.11.2006, within seven months after filing the written statement. It is well settled principle of law that the Court below cannot go into the merits of the case when an application is filed seeking amendment. As contended by the learned counsel for the petitioner, the question of limitation can be decided only in the suit as held by this Court in the judgment reported in 2009 (2) CTC 387 (C.V.Rambabu Vs. V.C.Jayanthi). The learned counsel for the respondents relied upon the judgment reported in AIR 1996 SC 2358 (Radhika Devi Vs. Bahrangi Singh and others) to contend that when the defendants pleads the written statement about the gift deed made in his favour, the amendment of plaint seeking declaration that the gift deed was obtained illegally and fraudulently cannot be accepted, if the same is beyond the period of limitation. A mere reading of the said judgment would clearly shows that the said judgment is not applicable to the present case on hand. In the present case, the amendment has been sought in order to get over the technical objections for the relief of setting aside incidentally to the prayer for declaration. In the present case, declaration has been sought for based upon the partition deed. If the petitioner is able to prove his case to get declaration based upon the partition deed, then the very sale in favour of the first respondent will have no force in the eye of law because the vendors of the respondents namely, the second respondent may not have title to convey in such a situation. Moreover, when the sale deed pertains to the third parties, the petitioner cannot be made aware of the same. Further as held earlier, the petitioner came to know about it only in the year 2006 and he has immediately filed the application for amendment, within a period of seven months from the date of filing of written statement. Hence, considering the facts and circumstances, the revision stands allowed.
6. It is made clear that the first defendant is permitted to file additional written statement, within a period of six weeks from the date of receipt of a copy of this order if so adviced. It is also made clear that the respondent is entitled to raise all the pleas including plea of limitation and the learned District Munsif, Pattukkottai is directed to dispose of the suit by considering the case of the petitioner as wells as the respondents without being influenced by any of the observations made by this Court.
With the above observation and direction, the Civil Revision Petition is allowed. Consequently, connected Miscellaneous Petition is closed. There shall be no orders as to costs.
DP To The District Munsif, Pattukkottai.