The revision petitioner is the plaintiff in the suit filed for partition. The plaintiff is the son of Late N.K.Radhakrishnan. The 1st defendant is the wife of Late N.K.Radhakrishnan and defendants 2 and 3 are daughters of Late N.K.Radhakrishnan.
2.The defendants 1 and 3 filed written statement contesting the claim of share in the suit properties on the ground that most of the properties were settled by Late N.K.Radhakrishnan in favour of the 2nd defendant and some of the suit properties were sold by him during his life time. The agricultural land and the business in the name and style of ''Radha Chemicals'' were not included in the suit schedule properties and therefore, the suit is bad for partial partition.
3.The 2nd defendant filed written statement reserving the right to file additional written statement. Thereafter, she filed additional written statement along with counter claim, seeking 4/9 share in respect of the suit schedule properties.
4.The plaintiff has filed a reply statement to the additional written statement and counter claim and sought for rejection of the counter claim. Meanwhile, the 1st and 3rd defendants have taken out an application to amend the plaint to include two items of property in the suit schedule, on the ground that those properties are also joint family property, which ought to be subjected to partition.
5.This application was heard by the Trial Court and after giving adequate opportunity to file counter, this application was allowed on 07.10.2016 recording that ''Counter not filed. Sufficient time is given. Respondent absent. No representation. Set exparte. Petition allowed''.
6.Aggrieved by this order, the plaintiff has preferred this revision petition on the ground that the application for adding properties by the defendants 1 and 3 in a suit for partition, is unknown to procedures and against the law.
7.The learned counsel for the revision petitioner has contended that the Trial Judge ought to have seen whether there is any proof to include two more properties in the partition suit at the instance of the defendants 1 and
3. In the absence of proof, even though the counter was not filed, the Trial Judge ought to have applied his mind before allowing the amendment petition.
8.The learned counsel further submitted that the plaintiff being the dominant litus, the defendants 1 and 3 cannot seek for inclusion of some more properties in his suit. If the defendants 1 and 3 are aggrieved that some of the properties are left out in the suit for partition, the option is to take a defence that the suit is bad for partial partition or to file a counter claim. Without adopting any of the above two methods, a new procedure unknown to law, has been adopted and allowed by the Trial Court at the instance of the defendants 1 and 3. Without there being any document to substantiate the relevancy of the properties which are sought to be included, the Trial Court has allowed the amendment petition, causing grave injustice to the plaintiff.
9.At the outset, it is the duty of this Court to record that in a partition suit, the concept of dominant litus, is not applicable. This legal position has been settled by the Division Bench of the Hon'ble High Court in the case of Solavaiammal vs. Ezhumalai Gounder, reported in 2012 (1) CTC 159, after taking note of the conflicting judgments by single Judge bench in two different cases. Paragraphs 15 to 17 and 19 of the above case are relevant to be extracted below:-
''15. Keeping the above principles in mind, the question raised in this civil revision petition is to be considered. Though a plain reading of Order VI, Rule 17 of the Code of Civil Procedure would appear that only a party to the plaint or written statement, as the case may be, could seek for amendment on the ground that such a party would be the dominant litus, it will be only a general rule in respect of all suits barring a suit for partition. In terms of Order VI, Rule 17, only the respective party to the pleadings could seek for amendment, as they are referred to as the plaintiff or defendant, as the case may be. In a partition suit, both the plaintiff and defendant are considered to be on the same pedestal to seek for a decree. This distinction is made by Courts. The application of Order VI, Rule 17 insofar as partition suits shall be considered keeping the above in mind.
16. While an amendment is sought, the Court has to see whether such amendment is imperative for proper and effective adjudication of the case, the amendment is bona fide or mala fide and in case such amendment is ordered, whether any prejudice would be caused to the other party which cannot be ultimately compensated in terms of money. The Court must also consider as to whether in the event the amendment is refused, it may lead to injustice or multiple litigation. One more principle to be followed while considering the request for amendment is as to whether it would change the character or nature of the case.
17.In a suit for partition, in the event the plaintiff has included only certain properties as if they are available for partition and leave some other properties which are also available for partition, the request of the defendant in such event to include the left out properties also in the plaint schedule would not in any way amount to altering or changing the nature or character of the suit, as such an amendment is also necessary for an effective adjudication of the case and to avoid multiplicity of proceedings.
19.However, in an application for amendment, the Court has to prima facie satisfy itself as to whether the properties are available for partition or not, as a detailed adjudication on the claim is improper. If there is a dispute over the inclusion of properties by the plaintiff contending that those properties are not available for partition, the Court is certainly entitled to reject the application for amendment on that ground. In such event, the only course open to the defendant is to file a suit for partition by including those properties.''
10.In the light of the above judgment, it is clear that in a suit for partition, the principle of dominant litus, which is a general rule in respect of all other suits, is not applicable and an amendment in a partition suit at the instance of the defendants 1 and 3 can be allowed, by altering or including few more properties to avoid multiplicity of proceedings. The only pre-condition is that the Court must prima facie satisfy that the properties are available for partition and also ensure that the claim made is not improper. If the Court is convinced that the properties are not available for partition, it can reject the application for amendment.
11.In this case, admittedly, an opportunity was given to the plaintiff to contest the amendment petition. Though the application was filed to amend the plaint on 27.08.2015 and was adjourned time and again for counter, since no counter was filed in spite of few adjournments, the Court below has allowed the amendment petition on 07.10.2016.
12.The learned counsel for the revision petitioner submitted that by allowing the amendment petition, the plaintiff is deprived of his right to contest the averments made in the amendment petition for including the properties and to submit certain remarks about how the properties were obtained in the name of the plaintiff, which he is liable and entitled to respond. For that purpose, the order must be set aside and an opportunity should be given to the plaintiff to contest I.A.No.383/2015.
13.This Court, after perusing the impugned order, is of the opinion that the plaintiff/revision petitioner though was given an opportunity to file counter in I.A.No.383/2015, to amend the plaint, he had not availed that opportunity for more than 10 months and only thereafter, the Trial Court has allowed the amendment petition. Though it is an ex parte order, by inclusion of these two properties, the case of the plaintiff is in no way going to be prejudiced. During trial, he could very well establish that these two properties are not available for partition and nothing prevents him from establishing the said fact. Since there is an amendment to the plaint by virtue of the order passed in I.A.No.383/2015, opportunity is always available to the plaintiff to file his reply statement, in view of the fact that amendment to the plaint has been allowed at the instance of the defendants 1 and 3. It is suffice to give an opportunity to the revision petitioner to file his reply statement regarding the amendment of plaint and he can exercise the said liberty by filing reply statement within 30 days from the date of this order which will meet the ends of justice.
In the result, this Civil Revision Petition is dismissed. No costs. Consequently, C.M.P(MD)No.2230 of 2017 is closed.
To The Principal District Judge, Virudhunagar District at Srivilliputhur.