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2008 DIGILAW 4174 (MAD)

Dr. Manjula Jothi v. B. Kannammal & Others

2008-11-13

M.VENUGOPAL

body2008
Judgment :- The civil revision petitioner/petitioner/plaintiff has filed the present revision petition aggrieved against the order dated 15.04.2008 in I.A.No.38 of 2008 in O.S.No.5 of 2007 passed by the Additional District Judge cum Fast Track Court-I, Erode in dismissing the amendment application filed by the revision petitioner/plaintiff under Order 6 Rule 17 and under Section 151 of Civil Procedure Code. 2. The trial Court, while passing orders in I.A.No.38 of 2008, has inter alia observed that the amendment application I.A.No.38 of 2008 has been projected with a view to delay the conduct of the trial and also to change the character of the suit and resultantly, has dismissed the application. 3. According to the learned counsel for the revision petitioner, the trial Court ought to have seen that the amendment sought for is only to clarify the plaint pleadings and does not in any way alter the nature and character of the suit and further that the amendment can be sought for at any stage of the suit if the circumstances so warrant, has not been taken into consideration by the trial Court and therefore, prays for allowing the civil revision petition in furtherance of substantial cause of justice. .4. Admittedly, the revision petitioner/plaintiff in the plaint at para 9 has among other things averred that because of the dispute in the family between second defendant and her husband on one side and the defendants 1, 3 and plaintiff on the other side there was an oral family arrangement on the morning of 10.06.1989 in the presence of Swami Sahajanatha, Dr. M. Jothi and A. Jaganathan and in the said family arrangement the second defendant gave up all her rights in the estate of Balakrishna Mudaliar and that the second defendant has written a letter to that effect recording the said family oral arrangement on the night 10.06.1989 and thereafter, they vacated and left the house at Thirunagar colony on 11.06.1989 etc. and therefore, the second defendant is not entitled to any share in the suit properties. 5. In the affidavit filed in I.A.No.38 of 2008, the revision petitioner/plaintiff has stated that in the said family arrangement the second defendant herein has gave up all her rights in the estate of Balakrishna Mudaliar etc. and therefore, the second defendant is not entitled to any share in the suit properties. 5. In the affidavit filed in I.A.No.38 of 2008, the revision petitioner/plaintiff has stated that in the said family arrangement the second defendant herein has gave up all her rights in the estate of Balakrishna Mudaliar etc. and by oversight it has not been pleaded that the plaintiff has perfected title by adverse possession and the plea of adverse possession is available to the revision petitioner on the facts of the case and that the said amendment sought for is not changing the cause of action nor changing the character of the suit. 6. In the counter filed by the second defendant and adopted by 14th respondent before the trial Court, it is inter alia averred that the proposed amendment is introducing a new case of adverse possession which is absolutely a contradictory plea and as per the proposed amendment the revision petitioner/plaintiff pleads exclusive possession of the suit properties and as per the existing pleading the revision petitioner/plaintiff has stated that she is in joint possession with defendants 1 to 3 and valued the suit under Section 37(2) of the Court Fees Act for the relief of partition and separate possession of item Nos.1 to 4, 7 to 13 as per the averments made in the plaint and in any event, the plea of adverse possession is time barred. .7. On going through the averments made in the plaint, it is quite evident that the revision petitioner has categorically averred that in the said family arrangement the second defendant herein has given up all rights in the estate of Balakirshna Mudaliar and that the second defendant has also written a letter to that effect recording the said family oral arrangement on the night of 10.06.1989 etc. and therefore, the amendment sought for in I.A.No.38 of 2008 praying to include the second defendant relinquished her share in the estate of Balakrishna Mudaliar and went out of the family as per the oral family arrangement on 10.06.1989 and thereby augmenting the share of the other sharers to 1/3 etc., cannot be construed by any means to project a new case or it cannot even be said that the revision petitioner/plaintiff is adopting an additional approach to change the nature and character of the suit already filed earlier and in that view of the matter, the order passed by the trial Court in dismissing the I.A.No.38 of 2008 by observing that the amendment will change the character of the suit and it will also delay the conduct of the suit proceedings are not correct in the eye of law and allows the civil revision petition in the interest of justice. 8. In fine, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.38 of 2008 is set aside. The trial Court is directed to provide opportunities to the respondents/defendants to file their additional written statements and at any time if it is found that the revision petitioner/plaintiff has to pay Court fee under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 then the trial Court shall direct the petitioner/plaintiff to pay the Court Fees and proceed with the suit in accordance with law. 9. It is informed that originally the suit has been numbered as O.S.No.92 of 2004 on the file of II Additional District Judge, Erode and later the same has been transferred to the file of Additional District Judge, Fast Track Court-I, Erode and numbered as O.S.No.5 of 2007 and hence, the Additional District Judge, Erode is directed to dispose of the main case within a period of four months from the date of receipt of copy of this order and to report compliance to this Court. After framing necessary issues, (if issues are not already framed) the trial Court is directed to dispose of the suit by providing opportunities to parties to file list of witnesses and documents if they so desire and the parties are directed to cooperate with the trial Court in completing the proceedings. Consequently, connected miscellaneous petition is closed.