Animadverting upon the order dated 16.02.2008 passed by the learned District Munsif cum Judicial Magistrate Court 1, Wallajah, in I.A.No.3 of 2008 in O.S.No.669 of 1995, this civil revision petition is focussed.
2. Heard both sides.
3.The petitioners filed the suit for partition. While so, during the pendency of the said suit, I.A.No.3 of 2008 was filed seeking amendment so as to incorporate the prayer for mesne profits. But the trial Court dismissed it. Being aggrieved by and dissatisfied with the order of the lower Court, the said revision has been filed on various grounds.
4. The learned counsel for the petitioners placing reliance on the grounds of revision would develop his argument to the effect that the prayer for mesne profits is an integral part of the prayer for partition in a partition suit and inasmuch as the said prayer is not spelt out in black and white in the plaint, the lower Court was not justified in dismissing the petition to incorporate such a prayer.
5. I could see considerable force in the submission made by the learned counsel for the petitioners. I am of the considered opinion that even at the final decree stage, the plaintiffs are at liberty to pray for assessment of mesne profits, by filing necessary application and the same has to be considered on merits by the Court concerned. Praying for mesne profits is different from adjudicating as to the right of the petitioners/plaintiffs to get such relief. As such I am of the considered opinion that mere delay in filing the application was not fatal in the facts and circumstances of the case. Accordingly, the order of the lower Court is set aside and the I.A.No.3 of 2008 is allowed.
Consequently, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
gms To District Munsif cum Judicial Magistrate Court 1, Wallajah