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2005 DIGILAW 1251 (MAD)

Ponnan v. Govindasamy @ Sarkarai & Others

2005-08-02

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition, filed under Section 115 Civil Procedure Code against the order dated 01.12.1999 passed by the Principal District Munsif, Kallakurichi in I.A.No.3167 of 1999 in O.S.No.689 of 1998, as stated therein.) This Civil Revision Petition is preferred against the order dated 01.12.1999 passed by the Principal District Munsif, Kallakurichi in I.A.No.3167 of 1999 in O.S.No.689 of 1998, dismissing the Petition filed under Order VI Rule 17 C.P.C, declining to amend the Plaint. The Plaintiff is the Revision Petitioner. 2. O.S.No.689 of 1998:- The Plaintiff has filed the Suit for Permanent Injunction to restrain the Defendants from interfering with the Plaintiff’s peaceful possession and enjoyment of the "A-Schedule” Property and for Partition of his half share in the "B-Schedule” Properties. "A-Schedule” Property is the Rice Mill. "B-Schedule” Properties comprise of 13 items. Case of the Plaintiff is that he has been in enjoyment of "A-Schedule” Property – Rice Mill. In lieu of the share given to the Defendant in S.No.54/5 of Periyamampattu – vacant site and the house thereon, the First Defendant was allotted the property in S.No.13/4 and the terraced house thereon at Vilakkur Village. The Plaintiff and the First Defendant are in common enjoyment of the "B-Schedule” Properties. While being so, the First Defendant has created false document as if the Deceased Father – Kandasamy had bequeathed the "B-Schedule” Properties in favour of the First Defendant and the Second Defendant. The said documents are false and not binding upon the Plaintiff. Claiming a share in the "B-Schedule” Properties, the Plaintiff has issued a Legal Notice dated 08.06.1998. Since the First Defendant had not effected Partition, the Plaintiff has filed the Suit for Partition, claiming his half share in the "B-Schedule” Properties. The Suit is also filed for Permanent Injunction restraining the Defendants from interfering with the Plaintiff’s peaceful possession and enjoyment of the "A-Schedule” Property. 3. After the filing of the Suit, as per the Order in I.A.No.3040 of 1998, the Sisters of the Plaintiff and the First Defendant had been impleaded as Defendants 3 to 5. 4. Denying the allegations in the Plaint, the First Defendant has filed the Written Statement contending that "A” and "B” Schedule Properties are the self-acquired properties of Kandasamy Mooper. Kandasamy Mooper was doing business in Paddy and Jaggery and the properties were self-acquired properties purchased from out of his own income. 4. Denying the allegations in the Plaint, the First Defendant has filed the Written Statement contending that "A” and "B” Schedule Properties are the self-acquired properties of Kandasamy Mooper. Kandasamy Mooper was doing business in Paddy and Jaggery and the properties were self-acquired properties purchased from out of his own income. The Suit Properties were acquired not with the aid of income from the Joint Family Properties. The Plaintiff has been well educated and Kandasamy Mooper has also secured a decent job for the Plaintiff. Out of his free Will and volition, Kandasamy Mooper has executed a Registered Will dated 20.05.1998 bequeathing "A-Schedule” Property to the First Defendant and "B-Schedule” Properties to his Son – the Second Defendant. The Plaintiff has no right or interest in the Suit Properties. To defeat the lawful right of Defendants 1 and 2, the Plaintiff has fabricated an Unregistered Will in favour of Sister – D-3. The Plaintiff, who is working as Sub-Registrar had given Police Complaint to harass the Defendants. The Suit has not been properly valued. Only at the instance of the Plaintiff, D-3 has been impleaded as the Defendant. The Plaintiff is not entitled for Permanent Injunction nor for Partition of "B-Schedule” Properties. 5. I.A.No.3167 of 1999:- This Application has been filed by the plaintiff to include few more Items of Immovable Properties to "B-Schedule” Properties. According to the Plaintiff, those Items have been omitted to be included in "B-Schedule” Properties. The Plaintiff averred that the Suit cannot be effectively adjudicated unless those Items of Properties are included in "B-Schedule” Properties. 6. Opposing the Application, Defendants 1 and 2 have filed the Counter Statement, contending that the Plaintiff being employed as Sub-Registrar could not have omitted to include the properties. In the earlier proceedings, the High Court issued a direction to the Trial Court to dispose of the Suit before 24.11.1999. When the case was posted for Trial on 02.12.1999, the Plaintiff has filed the Application only with a view to delay the trial proceedings. The Application is malafide and belated and cannot be allowed. 7. Upon consideration of the averments in the Affidavit and in the Counter Affidavit, learned District Munsif dismissed the Application pointing out the earlier proceedings in the High Court wherein the High Court has given direction to dispose of the Suit before 24.11.1999. The Application is malafide and belated and cannot be allowed. 7. Upon consideration of the averments in the Affidavit and in the Counter Affidavit, learned District Munsif dismissed the Application pointing out the earlier proceedings in the High Court wherein the High Court has given direction to dispose of the Suit before 24.11.1999. Further pointing out that the Suit was posted for hearing in the list on 02.12.1999, learned District Munsif was of the view that the Amendment Application has been filed only to delay the trial proceedings. 8. Aggrieved over the dismissal of the Amendment Application, the Plaintiff has preferred this Civil Revision Petition. Assailing the Impugned Order, learned counsel for the Revision Petitioner has submitted that in considering the Amendment Application liberal attitude has to be adopted. Submitting that to avoid multiplicity of proceedings, the Trial Court ought to have allowed the Amendment Application, learned counsel seeks to set aside the Impugned Order. The Impugned Order is also assailed on the ground that the Trial Court erred in going into the merits of the Amendment. 9. Though the First Respondent entered appearance, there is no representation for the First Respondent. The names of Respondents 2, 4 and 5 were printed in the cause list. The Third Respondent was given up. 10. The only point that arises for consideration in this Civil Revision Petition is : In the facts and circumstances of the case and in the light of the earlier direction by the High Court, is not the Trial Court justified in dismissing the Amendment Application and whether the Impugned Order suffers from material irregularity / jurisdictional error warranting interference? 11. The Suit has been filed for Permanent Injunction regarding "A-Schedule” Property, which is a Rice Mill in Vilakkur Village. The Plaintiff has claimed Partition of "B-Schedule” Properties. Originally in the Plaint, there were as many as 13 Items of landed properties. By the proposed Amendment, the Plaintiff seeks to include Six more items as Items 14 to 19. The Suit is of the year 1998. Written Statement was filed on 29.04.1999. The Amendment Application was filed on 28.11.1999. This seems to be a second round of litigation. Already in the earlier proceedings, the High Court had issued direction to the Trial Court to dispose of the Suit before 24.11.1999. Thereafter, the case was posted in the list on 02.12.1999. At that stage, the Amendment Application was filed. The Amendment Application was filed on 28.11.1999. This seems to be a second round of litigation. Already in the earlier proceedings, the High Court had issued direction to the Trial Court to dispose of the Suit before 24.11.1999. Thereafter, the case was posted in the list on 02.12.1999. At that stage, the Amendment Application was filed. In that view of the matter, the learned District Munsif was right in holding that the Application has been filed to delay the Trial proceedings. 12. It is relevant to note that earlier I.A.No.3040 of 1998 was filed and as per the order in the said Application, D-3 to D-5 have been impleaded as Defendants. Even at that stage, the Amendment Application had not been filed. It is not as if the Plaintiff is an illiterate. From the materials available on record, it is seen that the Plaintiff is employed as the Sub-Registrar. Hence, the Plaintiff must be in the know of things and also must be quite conversant with the family properties and the Court proceedings. Equally, the Plaintiff must have been quite aware of the implications in including or non-including of all the properties when the Suit is filed for Partition. Considering the facts and circumstances of the case and position of the Plaintiff, the delayed filing of the Amendment Application cannot be allowed. As rightly pointed out by the Trial Court, when the Suit was posted in the list on 02.12.1999, just a week prior on 26.11.1999 the Amendment Application was filed to delay the Trial Proceedings. 13. No doubt, under Order VI Rule 17 C.P.C, the Amendment Application could be filed at any stage of the Suit. But, when the delay in filing the Amendment Application lacks in bonafide, no lenient view could be taken. There is no merit in the averments in the Affidavit that only by including all the Items of the Properties, the Suit could be effectively determined. 14. Submitting that in an Application for Amendment of the Plaint Schedule Property, specifying more details as to the Plaint Schedule Survey Number, the Amendment does not result in fresh cause of action, the learned counsel for the Revision Petitioner has contended that the Amendment Application ought to have been allowed to avoid the multiplicity of litigation. 14. Submitting that in an Application for Amendment of the Plaint Schedule Property, specifying more details as to the Plaint Schedule Survey Number, the Amendment does not result in fresh cause of action, the learned counsel for the Revision Petitioner has contended that the Amendment Application ought to have been allowed to avoid the multiplicity of litigation. In support of his contentions, learned counsel for the Revision Petitioner has relied upon the decision reported in S. MUTHURAMAN ..V.S. DHANARAJA AND 11 OTHERS (1999 II C.T.C. 250). 15. In the said case, the Amendment Application to include more properties was dismissed by the lower Court on the ground that it creates a fresh cause of action. Under such circumstances, this Court reversed the Impugned Order. The case in hand stands entirely on different footing. As stated earlier, in the earlier proceedings, the High Court had given direction to the Trial Court to dispose of the Suit before 24.11.1999. Only when the case was listed on 02.12.1999, the Amendment Application was filed to include more Items of Suit Properties. Only pointing out the the conduct of the Plaintiff in delaying the Trial proceedings, the Amendment Application was dismissed not on the ground that it creates a fresh cause of action. 16. While dismissing the Application to amend the Plaint, learned District Munsif has pointed out that in the Affidavit, the Plaintiff has not stated whether the properties are the ancestral properties and also not stated how the properties belong to the family. The relevant finding is jdf;F ve;j tifapy; ghj;jpaij cs;sJ vd;gij vLj;Jf; TwhkYk;. kDr;brhj;Jf;fs; g{h;tPf brhj;Jf;fsh my;yJ ve;j tifapy; jdJ FLk;gj;jpw;F ghj;jpakhdJ vd;gJ Fwpj;J Twhjjhy; ,e;j kDit Vw;Wf;bfhs;s vt;tpj rl;lg{h;tkhd fhuzKk; ,y;iy. No doubt, learned District Munsif was not right in going into the details of the averments and saying that the Plaintiff has not averred as to whether the itmes of Properties sought to be included are the ancestral properties and how they belong to the family. On that ground alone, the Impugned Order does not suffer from serious infirmity warranting interference by this Court. 17. Learned District Munsif has rightly taken note of the conduct of the Plaintiff in filing the Amendment Application with delay. On that ground alone, the Impugned Order does not suffer from serious infirmity warranting interference by this Court. 17. Learned District Munsif has rightly taken note of the conduct of the Plaintiff in filing the Amendment Application with delay. The Impugned Order does not suffer from any material irregularity to interfere with the same, exercising Revisional Jurisdiction under Section 115 C.P.C. This Civil Revision Petition has no merits and the same is bound to fail. 18. For the foregoing reasons, the order dated 01.12.1999 passed by the Principal District Munsif, Kallakurichi in I.A.No.3167 of 1999 in O.S.No.689 of 1998 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs.