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2003 DIGILAW 132 (KAR)

K. D. NANAIAH v. KOKKANDA B. POONACHA

2003-02-06

D.V.SHYLENDRA KUMAR

body2003
D. V SHYLENDRA KUMAR, J. ( 1 ) THIS civil revision petition by defendants 5 and 6 in O. S. No. 75 of 1996 on the file of the Court of Civil Judge (Senior Division) at Virajpet, is directed against an order passed by the Trial Court dated 6-4-2002 on i. A. No. XX, an application filed by the plaintiffs in the suit. ( 2 ) THE suit is for partition and separate possession of the suit schedule properties. Plaintiffs and defendants 1 to 4 are stated to be the members of the joint family. Defendants 5 to 7 are purchasers of some of the properties from some of the members of the family. ( 3 ) PLAINTIFFS had filed an application I. A. No. XX under Order 6, Rule 17 read with Section 151 of the CPC praying for certain amendments to the plaint. The amendment sought for was for quite a few additional reliefs, one for modification of certain suit items and also for indicating the boundaries in respect of some of the properties, that certain transactions between defendants 2 and 7 are not bona fide and not binding, for permission to make certain averments in the nature of allegations against defendants 5 and 6 and for a prayer to claim damages in a sum of Rs. 10. 00 lakhs as against defendants 5 and 6 in the suit. It is the prayer relating to the permission to claim damages that is relevant for the purpose of this civil revision petition, inasmuch as, the application that had been filed by the defendant and had been allowed by the Trial court in total, and it is insofar as, it relates to the allowing of the prayer for damages in a sum of Rs. 10. 00 lakhs as against defendants 5 and 6, the aggrieved defendants are in revision before this Court under Section 115 of the CPC. ( 4 ) IT is the correctness of this order dated 6th April, 2002 insofar as it relates to allowing the plaintiffs to amend the plaint to include a claim for damages in a sum of Rs. 10. 00 lakhs as against defendants 5 and 6 which is sought to be questioned as illegal and going beyond the scope of the main suit and beyond the scope of an amendment application of this nature, that is questioned in this revision petition. 10. 00 lakhs as against defendants 5 and 6 which is sought to be questioned as illegal and going beyond the scope of the main suit and beyond the scope of an amendment application of this nature, that is questioned in this revision petition. ( 5 ) I have heard Sri K. S. Gaurishankar, learned Counsel for the petitioner and Sri B. T. Parthasarathy, learned Counsel appearing for the respondents. ( 6 ) THE only question that arises for consideration is as to whether the trial Court has committed any material irregularity and the order if allowed to be passed will cause injustice and hardship to the persons who complain of being affected by the same. ( 7 ) IT is not in dispute that the suit is for partition of the properties which the plaintiffs claim are joint family properties. Defendants 5 and 6 are also arrayed as parties to the suit because it is alleged that they have purchased certain joint family properties from some of the defendants and who are also members of the family, while it is the defence on behalf of the defendants that the properties sold are not joint family properties but are self-acquired properties. It is a matter which is required to be considered in the suit. Now during the pendency of such a suit, the amendment application was filed. A perusal of the pleadings contained in the amendment application prima facie indicate that the cause of action is one that has arisen during the pendency of the suit. Particularly allegations have been made against the conduct of the defendants 5 and 6 in the suit. In a suit for partition against the members of the joint family the only question that arises for consideration will be as to whether the suit schedule properties are in fact joint family properties and if so, what will be the entitlement of each member of the family to which the properties belong. Outsiders to the family like the purchasers are made parties to such a suit only for the purpose of having a binding effect on the purchasers also in respect of the properties which are joint family properties. Outsiders to the family like the purchasers are made parties to such a suit only for the purpose of having a binding effect on the purchasers also in respect of the properties which are joint family properties. In a suit of this nature a prayer for damages against some of the defendants who are persons not belonging to the joint family is alien to the nature of the suit and definitely not a cause of action which is part of the main suit. ( 8 ) WHILE allowing any application for amendment it is very essential that the Court should bear in mind as to whether the application if allowed changes the character of the suit and as to whether the question of limitation is involved. It is the submission of the learned Counsel for the petitioner that an amendment of this nature necessarily changes the character of the suit, particularly a suit for partition being converted into a suit for damages. It is submitted that it is not part of a suit for partition or incidental to it. The object of allowing any amendment is to ensure that duplication of litigation is avoided and if the relief has to be sought by way of amendment could very well be provided for in the very suit itself instead of driving the parties to another proceeding. But, at the same time it should be borne in mind that it should have a nexus to the original proceeding and not any other type of proceeding. Allowing an application for amendment to include a claim for damages in suit complicates the disputes in the suit and enlarges the same. I am of the view that the Trial Court has committed a material irregularity in allowing an amendment application of this nature which could bring about considerable complications in the disposal of a suit for partition and it will not definitely be in the interest of the parties to do so when the endeavour should be for expeditious disposal of the suit and not for prolonging and delaying the disposal. It is always open to the affected persons to seek damages in respect of certain events/developments by filing a separate suit is so advised and such a prayer definitely cannot and should not be allowed that too by way of an amendment in a partition suit. ( 9 ) APPLICATION LA. It is always open to the affected persons to seek damages in respect of certain events/developments by filing a separate suit is so advised and such a prayer definitely cannot and should not be allowed that too by way of an amendment in a partition suit. ( 9 ) APPLICATION LA. No. XX is allowed only to the extent of permitting the prayers other than the prayer relating to the claim for damages in a sum of Rs. 10. 00 lakhs as against defendants 5 and 6. The averments contained in the application relating to this prayer are not permitted to be added to the original plaint. To this extent the order impugned in the civil revision petition stands modified. Civil revision petition is allowed accordingly. ( 10 ) LEARNED Counsel for the respondent submits that the plaintiff had paid a Court fee of Rs. 66,000/-, on the application being allowed and the amendment having been carried out. Now that the application is allowed in part and the order passed by the Trial Court is modified, it is open to the plaintiffs to seek such other remedy/relief as they are entitled to in the matter of Court fee. --- *** --- .