Madras High Court
Kandasamy vs Balammal And 4 Ors. on 6 February, 1995
Equivalent citations: 1995(1)CTC307
ORDER Jagadeesan, J.
1. The three Revisions have been filed against the orders in I.A. Nos. 54 of 1994, 56 of 1994 and 55 of 1994 in O.S. No. 1631 of 1978 respectively. The respondents herein have filed before the lower court I.A. No. 54 of 1994 for amendment of the plaint, I.A. No. 55 of 1994 for amendment of the preliminary decree and I.A. No. 56 of 1994 for amendment of the petition I.A. No. 855 of 1992 filed for passing of the final decree. The amendment sought for is only the correction of survey number in the description of the property. The lower Court has taken into consideration the relevant circumstances and allowed the application on the ground that the mistake is only a typographical error and the amendments sought for, do not change the cause of action or needs any fresh evidence.
2. Learned counsel for the petitioner contended that against the preliminary decree an appeal was filed in A.S. No. 98 of 1986 on the file of the Sub-Court, Karur and the lower appellate court has allowed the appeal partly and modified the decree of the trial court in respect of the shares of the parties. The trial court decree is merged with the lower appellate court decree and hence if any amendment is sought for, it has to be done by the appellate court and the trial court has no jurisdiction to allow the application for amendment. Learned counsel for the petitioner also cited the following Judgments:
1. Pichuvayya Nadar v. Seshayya Nadar (I.L.R. 18 Madras 214)
2. Kannan v. Narayan
3. M/s. Goser Brothers (P) Ltd., v. Ratanlal
4. Sunil v. Shivprasad
5. Nishabar Singh v. Local Gurudwara Committee Manji Sahib
6. Ramsunder Singh v. Panakuer
3. I have gone through the judgments and I am of the view that they are not helpful for the petitioners to support their contention.
4. When once the partition suit is filed till the final decree is passed, the entire proceedings is wide open. Even any number of preliminary decrees can be passed. Hence, unless and until the final decree is passed, the trial court is having jurisdiction over the entire matter, except when the matter is pending in appeal against the preliminary decree. Once the appeal is over and again the matter comes back to the trial court for passing the final decree, the trial court has got jurisdiction to amend the plaint as well as the decree.
5. It would be very clear that suppose if one of the co-sharer dies, without any issues, then his share could devolve on the other co-sharers and in such circumstances the court wherein the final decree proceedings are pending is entitled to pass a decree taking into consideration the subsequent events and fix the shares of the respective parties. It cannot be said that even if one party dies and the appellate court has modified the decree or confirmed the preliminary decree, then the parties have to approach the Appellate Court to refix the respective shares of the parties.
6. In this view, the order of the Court below is correct and there is no substance in the contentions of the learned counsel for the petitioner. Accordingly, the Civil Revision Petitions are dismissed.
In view of the dismissal of the Civil Revision Petitions, the civil miscellaneous Petition is also dismissed.