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2002 DIGILAW 1137 (MAD)

C. S. Ananthakumar v. K. Balasubramanian

2002-09-26

K.GNANAPRAKASAM

body2002
Judgment :- The revision petitioner is the plaintiff in O.S.No.105 of 1998 on the file of Sub Court, Virudhunagar. 2.The revision petitioner has filed an application to amend the plaint and the same was not entertained by the trial court by order dated 15.4.2002 and the same is under challenge. 3.In the affidavit filed in support of the petition praying the court permission to amend the plaint, it is stated that subsequent to the filing of the suit, the plaintiff has sold the item 3 in the suit property to one Kavitha and she has filed petition under Order 1 Rule 10(2) and Section 151 CPC in I.A.No.338 of 2001 to implead her as 6th defendant and the said petition was dismissed. Item 6 of the suit property was also sold subsequently. Hence, the plaintiff has no interest in items 3 and 6 of the suit property and prayed the same got to be deleted. 4.It is also stated in paragraph 5 of the affidavit that in paragraph 11 of the written statement, the defendant raised a plea that the suit is not maintainable without a prayer for declaration and that the defendant has raised such a plea, the plaintiff is praying the court to permit him to amend the plaint. 5.Learned counsel for the revision petitioner has pointed out that the said petition was not at all entertained on the ground that there was an earlier order by this court, granting three months time to dispose of the suits in O.S.Nos.105 of 1998 and 56 of 1999 and the said time was over and therefore, the trial court had observed "this petition is filed to defeat the order of the High Court. Hence, this petition could not be entertained at this stage." It may be a fact that the time granted by this court might have been expired, but that is not the valid ground to dispose of the petition in cavalier manner. If the time granted by this court had expired, it is for the trial court to seek further time and it cannot be a good and valid ground for not to entertaining the petition at all. 6.On going through the affidavit, it is seen that the plaintiff seeks deletion of items 3 and 6 of the suit properties and that could be considered by the trial court. 6.On going through the affidavit, it is seen that the plaintiff seeks deletion of items 3 and 6 of the suit properties and that could be considered by the trial court. 7.The prayer in paragraph 5 of the affidavit that in view of the fact that the defendant has raised a plea in the written statement that the suit is not maintainable, without a prayer for declaration, the plaintiff is seeking permission of the court to amend the plaint praying for declaration of his right and title to the suit properties. In an injunction suit, usually such a prayer is not permissible for the reason that if the amendment is allowed, the said amendment would relates back to the date of filing the suit, in which case, question of limitation for seeking declaratory relief would arise. Hence, if the defendant has raised a plea, the court can frame an issue regarding the plaintiff's title to the suit properties as contemplated under Section 27(A)(II) of the Tamilnadu Court fees and Suits Valuation Act 14 of 1955 and the plaintiff shall also be called upon to pay necessary court fees. That is the course to be adopted in this case. 8.In the said view of the matter, the order so passed by the trial court is hereby set aside. The trial court is directed to consider the petition filed by the plaintiff for amendment, before proceeding further in this matter in the light of observations made above. Ofcourse, this could be done only after giving an opportunity to the respondent-defendant to file his objection, if any, to the said petition, and then to dispose of the petition in accordance with law. 9.In the result, the Civil Revision Petition is allowed to the extent indicated above. No costs. Consequently, no orders are necessary in C.M.P.Nos.9339 and 9866 of 2002 and they are closed.