Madras High Court
Dr.M.Chidambaram vs M.Ramamoorthy on 3 September, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 03.09.2018
RESERVED ON : 24.04.2018
DELIVERED ON : 03.09.2018
CORAM
THE HON'BLE MR. JUSTICE M.V.MURALIDARAN
C.R.P.(MD)(PD) No.2716 of 2015
and
CMP(MD)No.10230 of 2016
Dr.M.Chidambaram ... Petitioner
vs
1.M.Ramamoorthy
2.B.Meenakshi
3.N.C.Rajan .. Respondents
Civil Revision Petitions filed under Article 227 of Constitution of
India against the order 26.10.2015 passed in I.A.No.89 of 2015 in O.S.No.87
of 2012 on the file of the Principal District Court, Madurai.
!For Petitioner:Mr.R.V.Rajkumar
^For Respondents:Mr.J.John
:ORDER
This revision is directed against the order dated 26.10.2015 made in I.A.No.89 of 2015 in O.S.No.87 of 2012 on the file of the Principal District Court, Madurai, allowing the petition under Order 6, Rule 17 C.P.C. The petitioner herein is the plaintiff and he filed the suit for partition and for permanent injunction.
2. The first respondent, who is the first defendant in the suit filed I.A.No.89 of 2015 under Order 6, Rule 17 C.P.C. seeking to amend the schedule and to include certain properties in the schedule of properties mentioned in I.A.No.89 of 2015.
3. According to the first respondent, his parents executed a Will dated 08.05.1988 bequeathing the property and based on the Will, he was in possession of the said property of his own right. He had also filed O.P.No.1 of 2012, now numbered as O.S.No.62 of 2015 to probate that Will. According to the first respondent, to counter-blast the O.P. filed by the first respondent to probate, the petitioner had filed the present suit for partition.
4. The grievance of the first respondent is that properties possessed by their father, which were described in the petition, were ancestral in nature, which were also to be included for partition and for that purpose, he had filed the petition under Order 6, Rule 17 C.P.C.
5. The petitioner resisted I.A.No.89 of 2015 by contending that the suit property belongs to his mother and he filed the suit claiming partition in respect of his mother property alone. He had not filed the suit with regard to his father's property. Therefore, there is no necessity to include his father's property in the suit for partition as sought for by the first respondent.
6. Upon consideration of the rival submission, the trial Court allowed the petition. Assailing the same, the petitioner has filed the present revision.
7. I heard Mr.R.V.Rajkumar, learned counsel for the petitioner and Mr.J.John, learned counsel for the respondents and perused the entire materials available on record.
8. The learned counsel for the petitioner submitted that the trial Court overlooked the very conduct of the first respondent in filing the application to amend the plaint to include certain properties after having participated in the suit proceedings. The trial Court erred in law in not adverting to the absence of any allegation in filing the application seeking for amendment after the delay of nearly three years after filing the written statement. He would submit that the trial Court overlooked indisputably the claim of the petitioner for partition was only in respect of the property belonging to the mother of the petitioner and it is not open for the first respondent to file an application to include other properties belonging to his father and his rights cannot be decided in the suit filed by the petitioner. In support of his submission, the learned counsel relied upon the following decisions:
(i)Vellathuraipandi v. Lakshmanapandiyan and another, reported in 2015 (1) TNCJ 61 (Mad) (MB).
(ii)Mashyak Grihnirman Sahakari Sanstha Maryadit v. Usman Habib Dhuka and others, reported in 2013 SAR (Civil) 717.
(iii)Muthuvel v. Ponnusamy and others, reported in 2011 (2) MWN (Civil) 259.
(iv)Vidyabai and others v. Padmalatha and another, reported in (2009) 2 SCC
409.
(v)Lakshmi Ammal and others v. Sethuramayi and others, reported in 2014 (3) TNCJ 492 (Mad) (MB).
(vi)Solavaiammal and others v. Ezhumalai Gounder and another, reported in 2011-5-L.W. 859.
9. Per contra, the learned counsel for the respondents submitted that the first respondent filed the written statement in the suit stating that the suit is bad for partial partition and despite that the petitioner has not taken steps to include the properties of their father for partition. He would submit, the parents of the first respondent executed a Will bequeathing the property in favour of the first respondent and that the first respondent had filed O.P.No.1 of 2012, now numbered as O.S.No.62 of 2015 to probate the Will and the same is pending for consideration.
10. The learned counsel for the respondents submitted that in a partition suit, both the plaintiff and the defendant are considered to be on the same pedestal to seek for a decree and the amendment at the instance of either party to the suit is permissible under Order 6, Rule 17 C.P.C. He would submit that the trial Court has rightly allowed the petition for amendment and there is no need to interfere with the same. In support of his submission, the learned counsel relied upon the decision in Solavaiammal and others v. Ezhumalai Gounder and another, reported in 2011-5-L.W. 859.
11. I have considered the submissions made by the learned counsel for the petitioner and the learned counsel for the respondents and also perused the materials available on record.
12. The point that arises for consideration is whether the trial Court was right in allowing the amendment petition filed at the instance of the first respondent, who is the first defendant in the suit to include certain properties in the schedule of property for partition.
13. It appears that the petitioner had filed the suit claiming half share in the suit property on the ground that the suit property belongs to his mother. In the suit, the petitioner had also prayed for permanent injunction against the defendants 1 and 2 not to alienate the suit property. According to the petitioner, he had not filed the suit in respect of his father's property.
14. On the other hand, the first respondent contended that other ancestral and father's property have also to be included in the suit schedule for partition and for that purpose, he had filed the petition seeking amendment of the plaint schedule.
15. On a perusal of the written statement filed by the first respondent in the suit, this Court finds that the first respondent had categorically stated that the suit is bad for partial partition. In the reply to the written statement, the petitioner had stated that ?it is incorrect to state that the first defendant alone was in continuous possession of the suit property based on the alleged Will dated 08.05.1988. But on the other hand, it is the joint property of the plaintiff and the first defendant, wherein he has no exclusive rights or title?.
16. Whether the suit is bad for partial partition and whether the petitioner as plaintiff has not included all properties for partition between them are to be decided at the time of trial only. At this stage, it cannot be possible for this Court to decide whether the suit is bad for partial partition or not. However, the contention of the first respondent cannot be thrown out since he had stated that properties possessed by their father are ancestral in nature and the same have to be included for partition in the suit. Nothing has been shown by the petitioner that his father has not owned properties. Therefore, prima facie, this Court finds that there are ancestral properties, for which the first respondent filed an amendment petition to include the same in the plaint schedule.
17. The grievance of the petitioner is that in the suit filed by the plaintiff, the defendant has no right to seek an amendment and therefore, the amendment petition filed by the first respondent, who is the first defendant in the suit, seeking to include certain properties by way of amendment cannot be permitted and the trial Court erred in allowing the amendment petition.
18. The relevant provision of Code of Civil Procedure viz., Order 6, Rule 17 reads thus:
?17. Amendment of pleadings. - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that, in spite of due diligence, the party could not have raised the matter before the commencement of trial.?
19. In the case on hand, admittedly, as recorded by the trial Court in its order, issues were framed on 19.08.2014 and pursuant to order passed in I.A.No.87 of 2015, additional issues were also framed. In its order, the trial Court also recorded that the trial has not commenced and before commencement of the trial only, the first respondent had filed petition seeking amendment of the plaint schedule.
20. Except the decision in Solavaiammal and others v. Ezhumalai Gounder and another, supra, all other decisions relied upon by the learned counsel for the petitioner are in relation to - (i) amendment sought for post trial;
(ii) amendment for sought for after lapse of about three years; (iii) failure of plaintiffs to show that the proposed amendment was necessary for determination of the real question in controversy between the parties; (iv) amendment sought for to amend the written statement after commencement of trial and (v) amendment sought would affect the very nature of the suit. In the facts and circumstances of the given case, in the aforesaid decisions, this Court as well as the Apex Court held that amendment introducing new cause and new pleading cannot be allowed. But in the case on hand the issue is whether amendment of plaint in a partition suit, at the instance of first defendant is permissible. The aforesaid issue would clearly answer in the decision of this Court in Solavaiammal and others v. Ezhumalai Gounder and another, supra.
21. The decision in Solavaiammal and others v. Ezhumalai Gounder and another, supra, relied upon by both sides, arises out of a reference in C.R.P.(PD) No.3006 of 2010, wherein the Single Judge of this Court raised an issue as to whether under Order 6, Rule 17 C.P.C., amendment of the plaint in a partition suit can be allowed at the instance of the defendants. While answering the reference, the Division Bench of this Court observed that ?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.?
22. The Hon'ble Division Bench of this Court, in fact, in Solavaiammal and others v. Ezhumalai Gounder and another, supra, further held as under:
?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. As we have been called upon to answer the question as to whether the application under Order VI, Rule 17 of the Civil Procedure Code seeking for amendment of the schedule to the plaint in a partition suit at the instance of the defendant is maintainable or not, we answer the said issue by holding that while considering such an application, it is for the Court to decide on the facts of each case. The reference is answered accordingly.?
23. In view of the aforesaid decision cited supra, I am of the view that in a suit for partition, the defendant is also entitled to file an application for amendment to include the properties, which were left by the plaintiff. Admittedly, the petitioner has not produced any contra judgment showing that the defendant was not empowered to file an application for amendment to include properties in the partition suit.
24. In Pankaja and another v. Yellappa (D) Lrs. & others, supra, the Hon'ble Supreme Court held as under:
?12. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not to allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.?
25. It is settled that the dominant purpose of allowing the amendment is to minimize the litigation. Therefore, if the facts of the case so permits, it is always open to the Court to allow application in spite of delay and latches in moving such amendment application.
26. By relying upon the decision in Solavaiammal and others v. Ezhumalai Gounder and another, supra, the learned counsel for the petitioner contended that if there is a dispute over the inclusion of properties by the plaintiff stating that those properties are not available for partition, the Court is entitled to reject the application for amendment on that ground. In the case on hand, as stated supra, the first defendant pleaded that the suit is bad for partial partition. On the other hand, the petitioner stated that he only claimed partition in his mother's property, which would clearly shows that there were properties belonging to the deceased father. Further more, whether all the properties are available for partition is a matter of evidence.
27. The learned counsel further contended that if the amendment is permitted, it would change the character or nature of the suit and therefore, amendment cannot be permitted.
28. In a partition suit, both the plaintiff and defendant are considered to be on the same pedestal to seek for a decree. Therefore, the proposed amendment seeking inclusion of properties would not alter the character and the very nature of the suit, as the trial has not begun so far.
29. What is important is the Court has to see whether such amendment is imperative for proper and effective adjudication of the case and that the amendment is bona fide and in case, such an amendment is ordered, whether any prejudice would be caused to the other side. Further, the Court must also consider as to whether in the event the amendment is refused, it may lead to injustice or multiple litigation. Admittedly, in the case on hand, for proper adjudication of the matter, the amendment, as sought for by the first respondent, is necessary and by the proposed amendment, no prejudice would be caused to the petitioner. On the other hand, if the prayer is refused, definitely, it may cause hardship to the defendants in the suit.
30. For the foregoing reasons, I am of the view that the trial Court was right in allowing the petition for amendment seeking to include certain properties in the plaint schedule and that there is no illegality and/or perversity in the order of the trial Court.
31. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. It is made clear that this Court has not expressed any opinion on the merits of the suit and it is open to the trial Court to consider the suit on merits and in accordance with law expeditiously uninfluenced by any of the observations made in this Civil Revision Petition.
To The Principal District Court, Madurai.
.