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2007 DIGILAW 2007 (MAD)

M. Sadasivam v. Duraisamy

2007-07-04

S.ASHOK KUMAR

body2007
Judgment :- This Civil Revision Petition is filed against the fair and decretal order dated 31. 2007 made in I.A.No: 1599 of 2006 in O.S.No.274 of 1985 on the file of the learned Subordinate Judge, Namakkal, dismissing the I.A., filed by the second defendant under Order 6 Rule 17 CPC to amend the plaint. 2. The brief facts of the case leading to the filing of this revision is as follows:- The respondent/plaintiff had filed a suit O.S.No:274 of 1985 on the file of the Subordinate Judges Court at Namakkal for partition of is share in respect of four items of the suit property on the basis of a Will dated 11. 1979 executed by the revision petitioners paternal grand father in his favour and on the basis of a sale deed dated 9. 1984 alleged to have been executed by the petitioners father in his favour. The petitioners father had field a suit in O.s.No:187 of 1985 against the respondent/plaintiff to set aside the sale deed dated 9. 1984 on the ground that the same i a sham and nominal document not intended to be acted upon. The suits were tried together and the respondents suit was decreed while the suit filed by the petitioners father was dismissed. The appeal to the High court also went against him. The Civil appeals to the Supreme Court was also dismissed holding that the appellants share (revision petitioner) in the joint family properties is hereby decreed after setting aside the sale deed dated 9. 1984 executed by Marappa in favour of the respondent Doraisamy. Thereafter a preliminary decree of the petitioners share in the property which is the subject mater of the order impugned in this revision came to be passed. The plaintiff also filed I.A.No.191 of 1988 for passing of a final decree and the same is pending as of now. The plaintiff after disposal of the Civil Miscellaneous Appeals by the Honble Supreme Court filed a suit in O.S.No:157 of 1996 on the file of the District Munsif Court for a permanent injunction restraining the petitioner from interfering with his possession in S.No.149/1 measuring 7.20 acres till partition is effected. But the said suit was dismissed holding that the plaintiff was not in possession of the property and the plaintiff filed A.S.No.9 of 2006 against the said decree. But the said suit was dismissed holding that the plaintiff was not in possession of the property and the plaintiff filed A.S.No.9 of 2006 against the said decree. The petitioner at the same time filed the impugned I.A., seeking to amend the plaint by including the above property for partition in view of the findings of the Apex Court. The plaintiff resisted the said I.A., stating that the application is belated and the cause of action for the present claim did not exist at the time when the suit was filed and the only intention of the defendant is to drag on the final decree proceedings. 3. The learned Subordinate Judge has dismissed the I.A., on two grounds viz., (i) that it is belated and (ii) that it cannot be done after passing of the preliminary decree which was affirmed by the Apex Court. Aggrieved of the same, the present CRP is filed. 4. Learned counsel for the revision petitioner contended that immediately after passing of a supplemental preliminary decree by the Supreme Court, the plaintiff filed another suit in respect of the same property which was ultimately dismissed in the year 2006. Immediately thereafter the revision petitioner filed the I.A., and thus there is no intentional delay on the part of the revision petitioner. Further there can be successive preliminary decrees in a suit and therefore, the dismissal of the I.A., holding that no relief can be granted pending the final decree application is erroneous. 5. Per contra, learned counsel for the respondent submitted that the revision petitioner should have filed a separate suit seeking proper relief in respect of the property which was sought to be included in the I.A., The respondent has got separate defences in that regard and those defences cannot be adjudicated in the present final decree application and it can be adjudicated by way of independent suit. The sale deed executed by Marappa is sham and nominal on 2. 1996. Since no prayer for possession is prayed for, the possession of Duraisamy is adverse to the interest of real owner. This question cannot be gone into in the final decree proceedings. Further the petitioner cannot seek to amend the plaint and the suit property, filed by the plaintiff. 1996. Since no prayer for possession is prayed for, the possession of Duraisamy is adverse to the interest of real owner. This question cannot be gone into in the final decree proceedings. Further the petitioner cannot seek to amend the plaint and the suit property, filed by the plaintiff. Moreover the possession of the property which was sought to be included is in the hands of the plaintiff and therefore the petitioner claims any right in those properties pursuant to the decree granted by the Supreme Court can only sue for recovery of possession since in the appeal before the Supreme Court he has only prayed for the relief of declaration and no consequential relief has been prayed for. 6. It is well settled position of law that a preliminary decree can be moulded on the basis of subsequent events. There is also nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree. In fact the Honble Supreme Court after taking into consideration the preliminary decree passed in O.S.No.187 of 1985 and O.S.No:274 of 1985 moulded and passed a supplemental preliminary decree. It is not in dispute that even after passing of the preliminary decree it is open to the courts to give appropriate directions either on an application of the parties or suo moto to set at rest all contentious issues between the parties to the proceedings. A Full Bench of this court in the judgment reported in AIR 1951 Madras 930 had an occasion to consider the jurisdiction of the court to pass a direction for mesne profits without such a relief being claimed for the same originally so as to avoid multiplicity of litigation. 7. It is axiomatic that the proceedings in a suit for partition does not come to an end till the final decree is passed and therefore an application to amend the plaint to include the property and that too in pursuance of the judgment of the Apex Court is definitely maintainable. 7. It is axiomatic that the proceedings in a suit for partition does not come to an end till the final decree is passed and therefore an application to amend the plaint to include the property and that too in pursuance of the judgment of the Apex Court is definitely maintainable. As rightly contended by the learned counsel for the revision petitioner, immediately after the judgment of the Apex Court, the respondent has filed a suit for injunction and after dismissal of the same, the petitioner has come forward with the present I.A., and therefore, there is no laches on the part of the revision petitioner and it cannot be stated that the application has been filed with ulterior motive to drag on the final decree proceedings. 8. In the result, this CRP is allowed, setting aside the order dated 31. 2007 made in I.A.No:1599 of 2006 in O.S.No.274 of 1985 passed by the learned Subordinate Judge, Namakkal. Consequently, connected M.P is closed. However, there is no order as to costs.