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2004 DIGILAW 785 (MAD)

M. MURUGAN v. L. A. MUTHU

2004-06-21

V.KANAGARAJ

body2004
Judgment : ( 1 ) THE above civil revision petition has been filed against the fair and decreetal order dated 12. 2003 and made in I. A. No. 759 of 2003 in O. S. No. 547 of 1998 on the file of the Court of Principal Subordinate Judge, Salem thereby dismissing the said Interlocutory Application filed by the plaintiff seeking to amend the plaint regarding certain new facts that have been brought forth in the circumstances of the case. ( 2 ) AGGRIEVED, the petitioner/ plaintiff before the lower Court has come forward to file this civil revision petition on certain grounds as brought forth in the grounds of revision. ( 3 ) TODAY, when the above civil revision petition was taken up for consideration in the presence of the learned counsel for both, what comes to be known is that it is the plaintiff who filed the interlocutory petition before the lower Court seeking to amend the plaint suitably on ground that since the suit is for partition and separate possession of the family properties, pending disposal of the same, his mother passed away, leaving 150 sovereigns of jewels which according to the petitioner/plaintiff had been purchased by his father in the name of the mother during her life time which should also be treated as family property and that without notice to the petitioner, the defendants have not only appropriated the jewels shown as item 8 of the suit schedule, but also selling the same have purchased the immovable properties mentioned in item 7 of the suit schedule properties and, therefore, the plaint has to be suitably amended to include those items also for proper relief to be obtained in the suit, the interlocutory application has been filed and the same has not been properly considered so as to dismiss the same by the lower Court. ( 4 ) ON the part of the learned counsel for the respondents, he would submit that there are materials to show that regarding the family properties, nothing is in common nor could be termed ancestral since there had been many events which have taken place during the relevant time and, therefore, even the very suit for partition is not maintainable and hence the interlocutory application filed in such a suit becomes liable to be dismissed at this core itself and hence, would pray to dismiss the civil revision petition also. ( 5 ) REGARDING the maintainability of the suit, on grounds as suggested on the part of the respondents, they have to agitate the same on such documentary evidence or proof before the trial Court itself for which they are at liberty and pending the said suit, now the question that is to be decided is whether the interlocutory application filed by the plaintiff seeking amendment of the plaint on such grounds pleaded should be allowed or not? The lower court, disbelieving the version of the plaintiff just for the simple reason that five years later this petition had been filed and that those properties which are sought to be included in the items of the properties have been purchased by the defendants from out of their self-acquisition and that there was no such property as family properties as it has been argued on the part of the respondents and trusting the same, the lower court has arrived at the conclusion to dismiss the above interlocutory application which cannot be done and these conclusions could be arrived at by the trial Court only in the suit after affording due opportunity for both the parties to be heard and conducting a full trial on facts and circumstances brought forth and in application of the law on the subject and, therefore, the conclusions arrived at is only on different parameters as suggested by legal convention and propositions. ( 6 ) SOfar as an application for amendment of the pleading is concerned, the two main requisites are, whether the amendment sought to be introduced is susceptible to alter the structure of the plaint and if such amendment is allowed, whether there would be a change of cause of action?. These two main requirements do not seem to have either been taken up for discussion or decided so as to arrive at a valid conclusion by the lower Court. But entirely on factual findings, the lower Court has arrived at the conclusion to dismiss the interlocutory application which is not correct nor has the Court found any reason to arrive at such conclusion on facts during the pendency of the suit and, therefore, this Court is left with no choice but to set aside the order passed by the lower Court on different parameters than what could be adopted by the lower Court for deciding the question of amendment. ( 7 ) MORE over, on facts, on the part of the petitioner, he has reason to come forward with the application of this sort since only after the death of their mother, items 7 and 8 came to the notice of the petitioner; that taking away the jewels of the mother and selling the same without notice to the petitioner, the properties mentioned in items 7 has been purchased as per pleadings of the petitioner for amendment and, therefore, this petition could not have been brought forth immediately on filing of the suit as it comes to be seen. ( 8 ) FURTHER more, regarding the facts, no conclusions could be arrived at on assumptions or presumptions since at the time of trial, the lower Court is not supposed to go deep into the subject so as to give a lead regarding the parties right in which event, the trial Court to be held will only become a formality and since the subject has to be decided only based on conclusions arrived at after a full trial is over, such conclusions cannot be arrived at by the lower Court on the basis of the determination and the same should only be discredited. ( 9 ) IN all fairness, this Court is of the view that an opportunity given to the petitioner to amend the plaint in the manner sought for does not seem to run counter to the dictum of law as afore-extracted nor will the same cause any prejudice to the interest of the respondents. Since the decision has to be ultimately arrived at on facts and in accordance with law, after a full trial is held including those facts brought forth in the amendment, the following order is necessary and the hence the same is passed. In result, (i) the above civil revision petition succeeds and the same is allowed; (ii) the fair order and decreetal order dated 10. 12. 2003 and made in I. A. No. 759 of 2003 in O. S. No. 547 of 1998 on the file of the Court of Principal Subordinate Judge, Salem, is set aside; (iii) consequently, connected C. M. P. No. 86 of 2004 is closed; (iv) No costs.