The civil revision petition is directed against the order dated 22.12.2008 in I.A.No.391 of 2008 in O.S.No.156 of 2003 on the file of the District Munsif, Tirupattur.
2.The suit in O.S.No.156 of 2003 was instituted by the revision petitioner against the respondent praying for a decree of declaration and consequential injunction. In the said suit, the petitioner has relied on a Will dated 04.01.1999, stated to have been executed by his father in his favour. The execution of the Will was denied by the respondent. According to the respondent, he is also a co-owner of the property and as such, the petitioner was not entitled to the decree for declaration and consequential injunction.
3. While the matters stood thus, the petitioner filed an application in I.A.391 of 2008 praying for an order to amend the plaint by deleting the relief of declaration.
4. In the affidavit filed in support of the application in I.A.391 of 2008, it was the contention of the petitioner that he has got title to the suit property which cannot be questioned by the respondent and as such, there was no necessity for seeking the relief of declaration and he would be satisfied in case of granting a decree of injunction in the suit.
5. The said application was opposed by the respondent by filing counter. According to the respondent, the suit was pending for the last 5 years and the petitioner has come up with the novel idea and praying for deleting the relief of declaration at the belated stage. Accordingly, he prayed for dismissal of the application.
6. The learned trial Judge found that the respondent has denied the title to the property as claimed by the petitioner. His mother also filed an application to implead her as a party to the suit. Therefore the dispute regarding the title was very much present in the matter and as such, the petitioner cannot be permitted to delete the prayer for declaration and accordingly, the application was dismissed. The said order is impugned in this civil revision petition.
7. The suit in O.S.No.156 of 2003 was preferred only by the petitioner praying for a decree of declaration and consequential injunction in respect of the suit property. The basis for filing the suit was the Will dated 04.01.1999, stated to have been executed by his father, who died on 27.06.2000. The factum of execution of the said Will was denied by the respondent. According to the respondent, there was no such Will executed by his deceased father and it was a rank forgery.
8. The matter was kept pending for five years and ultimately in the year 2008, the petitioner filed an application to delete the prayer for declaration. It is true that the title as claimed by the petitioner was denied by the respondent in the written statement. The petitioner being the plaintiff in the suit, it was for him to decide as to whether he has to obtain a decree of declaration or injunction. It is true that the Will stated to have been executed by P.V.Kanaga Chetty was disputed by the respondent. Therefore the burden is on the petitioner to prove that the Will executed on 04.01.1999 was genuine. In any case, it cannot be said that the petitioner was debarred from deleting the prayer for declaration. The learned Judge was not justified in his observation that there should be declaration in the suit when the petitioner being the plaintiff himself was not interested in such a declaration. Therefore I am of the view that the learned Judge has not exercised the discretion in accordance with the legal principles, and as such the impugned order is liable to be set aside.
9.The suit was filed in the year 2003 and the respondent has filed his written statement on 20.11.2003. In the written statement, the claim made by the petitioner on the basis of the Will was specifically denied. However, the petitioner filed the application for amendment only in the year 2008. The learned counsel for the respondent submitted that in view of the pendency of the suit for declaration, no suit for partition was filed by the respondent. In such circumstances, I am of the view that the respondent should be compensated.
10. In the result the order dated 22.12.2008 in I.A.No.391 of 2008 is set aside subject to condition that the petitioner pays a sum of Rs.10,000 (Rupees ten thousand only) as cost to the respondent within a period of four weeks from the date of receipt of a copy of this order failing which, the application would stand dismissed without any reference to this Court. No costs. The connected miscellaneous petition is closed.
16.09.2009 Index :Yes/No Internet:Yes/No vri To The District Munsif, Tirupattur, Vellore District.
K.K.SASIDHARAN,J.
Vri C.R.P. PD No.733 of 2009 16.09.2009