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2005 DIGILAW 1001 (MAD)

Ramasamy & Another v. P. Marappan & Others

2005-07-04

R.BANUMATHI

body2005
Judgment :- This revision is preferred against the order of the Subordinate Judge, Sankari made in I.A.No.1141 of 1991 in O.S.No. 191 of 1992 dated 29.3.2001 dismissing the petition filed by the first Defendant under Section 151 of C.P.C. to amend the Plaint and to introduce petition mentioned properties in the Plaint schedule. Parties are related as under:- Defendants 2 to 4 are Co-sharers; each entitled to ¼ share in items 3 and 4. 2. O.S.No. 191 of 1992:- Case of the Plaintiff is that the Plaintiff and his elder brother D1 jointly purchased the item No.1 of the suit property by a Sale Deed dated 5.12.1973. Both the Plaintiff and the first Defendant constructed a terraced house in item No.1 - S.No.322/1. The Plaintiff is having half share in the house and the agricultural lands in S.Nos.322/1, 322/2 and half right in the Well and the electrical motor pump set thereon. Item No.2 is the ancestral property of the Plaintiff and the first Defendant. Plaintiff and D1 being the legal heirs to their father Peria Marappa Gounder, both of them are entitled to half share in item No.2. Defendants 2 to 4 are the co-sharers in suit items 3 and 4, which are also ancestral properties. Plaintiff and D1 are jointly entitled to ¼ share in items 3 and 4 of the suit properties. The Plaintiff demanded the Defendants to effect an amicable partition of the suit properties, but the Defendants refused to have amicable partition. Hence, the Plaintiff has filed the suit for partition claiming ½ share in the suit properties items 1 and 2 and 1/8 share in items 3 and 4. 3. The first Defendant filed the written statement contending that the Plaintiff has not been in possession and enjoyment of first and second items of suit properties. D1 has been in continuous possession and enjoyment of the suit property item No.1 and the house thereon. Only D1 had built the house in S.No.322/1 and he is paying the house tax and electric consumption charges to the house. D1 is the elder brother, who earned money and educated the Plaintiff from out of the joint family funds. D1 has been in continuous possession and enjoyment of the suit property item No.1 and the house thereon. Only D1 had built the house in S.No.322/1 and he is paying the house tax and electric consumption charges to the house. D1 is the elder brother, who earned money and educated the Plaintiff from out of the joint family funds. D1 had also purchased properties at Madras in the name of the Plaintiff with an understanding that the Plaintiff has to take and enjoy the properties at Madras and that the first Defendant has to enjoy all the properties at Tiruchengodu village. D1 borrowed money from various persons and built house at Madras in the name of the Plaintiff and D1 has half share in the properties at Madras. Similarly, D1 and the Plaintiff have also purchased properties in the name of Plaintiff's minor daughter Selvi. D1 has been in continuous possession and enjoyment of the suit property items 1 and 2 and has perfected his title to the same by way of adverse possession. The Plaintiff is not entitled to claim any share in items 1 and 2 of the suit property. The earlier suit filed by the Plaintiff before the District Munsif Court, Tiruchengode was dismissed after full trial and the Plaintiff's claim was negatived. After the dismissal of that suit, the Plaintiff has come forward with the vexatious suit without disclosing the previous suit. The Plaintiff is not entitled to any partition and the reliefs claimed by him. 4. I.A.No.1141 of 1999:- D1 has filed this application under Section 151 of C.P.C. to direct the Plaintiff to implead the petition mentioned properties as the suit properties. According to the first Defendant, he and his brother-Plaintiff have purchased petition mentioned properties from out of income of the joint family funds. The first item of petition mentioned properties is purchased in the name of Saravanan, who is the son of the Plaintiff by registered Sale Deeds dated 18.1.1989 and 27.2.1989. similarly, second item of petition mentioned properties was purchased under two registered Sale Deeds in the name of the Respondent and another in the name of the Respondent's daughter by name Selvi, who was then aged about 12 years. similarly, second item of petition mentioned properties was purchased under two registered Sale Deeds in the name of the Respondent and another in the name of the Respondent's daughter by name Selvi, who was then aged about 12 years. As per the oral family arrangements, the first item of the petition mentioned property was allotted to the first Defendant and the second item of property was allotted to the Plaintiff for their maintenance. In the first and second items of the property, the Plaintiff is entitled to half share. Hence, the Plaintiff has filed the petition to direct the Respondent to include the petition mentioned properties in the Plaint schedule. 5. Resisting the application, the Plaintiff has filed the counter statement contending that after his father's death in 1952 and mother's death in 1953, the properties were looked after by the maternal grand father Nalla Gounder. The Plaintiff was employed as a lecturer in 1964 and 1965 at P.S.G. Arts College, Coimbatore. Later, the Plaintiff was managing the buses belonging to maternal uncle at Salem. The Plaintiff was appointed as Assistant Director of Statistics in the year 1968 which is a gazetted post. The Plaintiff got married in the year 1996. The Plaintiff's wife hails from affluent family in Pakkiripalayam, Soudhapuram Village, Tiruchengode Taluk. The Plaintiff's wife has good income from her family properties. Her father Muthu Gounder died in 1971. Thereafter, the Plaintiff purchased first item of petition mentioned properties from Adyar Co-operative House Site Society on 30.1.1990 for the sum of Rs.36,375/- and the Plaintiff constructed house by mortgaging the property to the Government. 4th item of the petition mentioned property and the super structure thereon are the absolute properties of the Respondent. The Second item of property was purchased in the name of first Respondent's daughter Selvi. The sale consideration was paid by her maternal grand mother and the same is still a vacant site. The first Defendant has no manner of right, title or interest in the petition mentioned properties and cannot seek to include those items in the suit. 6. During the enquiry in the application, in support of his contention, the Plaintiff produced Exs.R1 to R11. The learned Subordinate Judge dismissed the application on the ground that no documents have been produced showing the purchase of those properties from out of income of joint family properties. 6. During the enquiry in the application, in support of his contention, the Plaintiff produced Exs.R1 to R11. The learned Subordinate Judge dismissed the application on the ground that no documents have been produced showing the purchase of those properties from out of income of joint family properties. It was found that by producing the documents, the first respondent in I.A.No.1141 of 1999 has proved that item No.1 is his self-acquired property and that item No.2 is the property of first respondent's daughter Selvi. Aggrieved over the dismissal of the application, the first Defendant has preferred this revision. 7. Learned counsel for the Revision Petitioner/first Defendant has contended that the petition mentioned properties in which D1-elder member of the family is claiming the share was omitted to be included in the Plaint schedule which necessarily calls for amendment of the Plaint schedule. Contending that when the suit is for partition of joint family properties, it is submitted that all items of petition mentioned properties are to be included in the Plait schedule to effect complete adjudication between the parties. 8. The impugned order is assailed on the ground that the trial Court erred in going into the merits of the averments in the affidavit and in the counter statement and the learned Subordinate Judge erred in refusing to direct the Plaintiff to amend the Plaint schedule to include the petition mentioned properties. 9. Countering the contentions of the Revision Petitioner, the learned senior counsel for the first respondent/ Plaintiff has submitted that the petition is only an abuse of Court, a party can only seek to amend his pleadings and he cannot seek for issuance of direction from the Court to the opposite party to include more properties to the Plaint schedule. Submitting that no documents have been produced prima facie showing that the petition mentioned properties are joint family properties, the learned counsel submitted that the Court below has rightly dismissed the petition and that the impugned order does not suffer from any infirmity warranting interference. 10. Upon consideration of the contentions of both parties, the impugned order and other materials on record, the following points arise for consideration in this revision. (i) Is it open to the first Defendant to seek for amendment inserting petition mentioned properties in the Plaint Schedule? 10. Upon consideration of the contentions of both parties, the impugned order and other materials on record, the following points arise for consideration in this revision. (i) Is it open to the first Defendant to seek for amendment inserting petition mentioned properties in the Plaint Schedule? (ii) Whether the impugned order declining to amend the Plaint at the instance of D1 suffers from material irregularity and serious error warranting interference. 11. The suit was filed on 23.4.1992. The first Defendant has filed his written statement in 1994. Even in the written statement, the first Defendant has raised the plea that item No.1 of the petition mentioned property was purchased by him from out of income of the joint family funds. According to the Plaintiff, the second item of the petition mentioned property was purchased in the name of his daughter Selvi and that the consideration was paid by her maternal grand mother. But the case of the first Defendant is that item No.2 of the petition mentioned property was also purchased in the name of Selvi, daughter of the Plaintiff from out of the joint family funds. Though such a plea had been set forth in the written statement even in 1994, the first Defendant had not taken any step seeking for issuance of direction to the Plaintiff for amending the Plaint. After filing of the written statement nearly 5 years thereafter, the application has been filed under Section 151 C.P.C. seeking for issuance of direction to include the petition mentioned properties, lacks in bonafide. 12. Under Order VI, Rule 17 C.P.C., a party can seek to amend 'his pleadings' in Plaint or written statement. Though a party can seek to amend his pleadings, the party cannot seek to amend the pleadings of the opponent party. In other words, the Defendant cannot seek to amend the Plaint. The Plaintiff is the dominus litus. He cannot be compelled to include other items of properties in the plaint schedule. If the petition mentioned properties which are sought to be included in the Plaint schedule, if they are proved to be joint family properties, the suit would only be bad for partial partition. On that score, the first Defendant cannot seek for issuance of direction to the Plaintiff to include the petition mentioned properties in the plaint schedule. 13. If the petition mentioned properties which are sought to be included in the Plaint schedule, if they are proved to be joint family properties, the suit would only be bad for partial partition. On that score, the first Defendant cannot seek for issuance of direction to the Plaintiff to include the petition mentioned properties in the plaint schedule. 13. Perhaps to avoid such technicalities, the petition for issuance of such direction has been filed under Section 151 C.P.C. invoking inherent powers of court. The inherent powers of the Court under Section 151 C.P.C. is supplementary to the other provisions of the Civil Procedure Code. Where there is specific provision for amendment of the pleadings, the inherent power of the Court cannot be invoked. 14. Assailing the impugned order, the learned counsel for the Revision Petitioner has submitted that the learned Subordinate Judge has erred in going into the merits of the contention and expressing the findings that the petition mentioned properties are the self-acquired properties of the Plaintiff. It has been contended that while considering the amendment application, the Court is not to determine upon the merits of the amendment sought to be included. In support of his contention that the merits of the amendment is not to be traversed at the application stage, the learned counsel for the Revision Petitioner has relied upon the decision reported in A.I.R. 1984 MADRAS 19 (T.P.PALANISWAMI AND ANOTHER – Vs. - DEIVANAIAMMAL) wherein, it has been held:- " It is well settled that while deciding an application for amendment, the Court is not supposed to go into the merits and demerits of the amendment and express an opinion one way or the other. That could be the subject matter of scrutiny after the amendment is allowed. Applying the well accepted principles therefore, and after the defendant files the additional written statement and after appropriate additional issue is framed and that issue is tried after the parties placed the requisite evidence therefor and submitted arguments in support of their respective cases. In the said decision, this Court referred to the decision reported in A.I.R. 1949 Madras 469 (DHARMALINGA CHETTI – Vs. - KRISHNASWAMI CHETTY) wherein this Court has observed that the alleged falsity of the case in the intended amendment need not and should be gone into at the stage of considering the application for amendment ". 15. In the said decision, this Court referred to the decision reported in A.I.R. 1949 Madras 469 (DHARMALINGA CHETTI – Vs. - KRISHNASWAMI CHETTY) wherein this Court has observed that the alleged falsity of the case in the intended amendment need not and should be gone into at the stage of considering the application for amendment ". 15. During enquiry in I.A.No. 1141 of 1999, on behalf of the petitioner no evidence was adduced. On the other hand, on behalf of the Respondents, Exs.R1 to R11 were marked as documentary evidence (Sale Deeds and other documents). The learned Subordinate Judge has gone into the documents and observed that the petition mentioned properties - item Nos.1 and 2 are proved to be self acquired properties of the Plaintiff and they are not proved to be joint family properties. The relevant finding reads:- 16. As noted earlier, even in the written statement, D1 has put forth that the petition mentioned properties-items 1 and 2 are the joint family properties purchased out of the income from the joint family properties. Character of those properties is the subject matter of the dispute in the suit. When that being so, the learned Subordinate Judge was not right in observing that the petition mentioned properties – items 1 and 2 are proved to be self-acquired properties of the Plaintiff. The abovke finding is pre-mature. 17. Either under Order VI, Rule 17 of C.P.C. or invoking the inherent powers of the Court under Section 151 of C.P.C., no direction could be given to the Plaintiff to include some more items of properties in the Plaint. The learned Subordinate Judge rightly declined to issue such a direction to the Plaintiff to amend the Plaint. The impugned order does not suffer from any material irregularity warranting interference. 18. For the forgoing reasons, the order made in I.A.No.1141 of 1999 in O.S.No. 191 of 1992 on the file of Sub Court, Sankari (dated 29.3.2001) is confirmed and the revision petition is dismissed. However, it is directed that during the trial, the lower Court may not be influenced by the findings of the Court made in I.A.No.1141 of 1999 regarding the character of the petition mentioned properties. Since the suit is of the year 1992, the trial Court is directed to expedite the trial and dispose the same expeditiously and in accordance with law. There is no order as to costs. Since the suit is of the year 1992, the trial Court is directed to expedite the trial and dispose the same expeditiously and in accordance with law. There is no order as to costs. Consequently,C.M.P.No. 11134 of 2001 is also dismissed.