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2009 DIGILAW 4515 (MAD)

Mariyal v. Ranjitham (dead) & Others

2009-10-28

P.P.S.JANARTHANA RAJA

body2009
Judgment :- Civil Revision Petition is filed against the fair and decreetal order dated 21.01.2009 made in I.A.No.21652 of 2008 in O.S.No.3434 of 1999 on the file of the V Assistant City Civil Court, Chennai. 2. The petitioner is the plaintiff and the respondents are the defendants in the suit. The suit in O.S.No.3434 of 1999 has been filed for partition and separate possession of the schedule mentioned property by metes and bounds and for the allotment of 1/15th share out of the 1/3rd share to which her branch is entitled to in the suit property, ignoring the value of the constructions standing on the suit land (amended as per orders in I.A.No.6928/03 dated 24.09.2003) and for appointment of a Commissioner to make a division by metes and bounds and effect separate allotment to the plaintiff and also to ascertain the mesne profits for the 1/5th share out of the 1/3rd share in the suit property from the institution of the suit till the allotment of separate possession and for costs. The defendant has filed a written statement denying all the allegations. Subsequently, the petitioner/plaintiff filed I.A.No.21652/2008 in O.S.No.3434 of 1999 to amend the pleadings in the manner as described in the accompanying application. i.e. schedule of property portion after the words S.No.omit 137/1 and add 147/1. The respondents herein/defendants filed a counter objecting the same. After considering the arguments advanced on either side, the learned V Assistant Judge, City Civil Court, Chennai, while dismissing the interlocutory application, has held as follows: "5. Original suit was filed for the property in S.No.237/1. Subsequently, amendment petition filed in I.A.No.14010/2007 and was allowed on 18. 2007 and S.No.237/1 was amended as 137/1. Now again the petitioner filed this petition to amend the survey number at belated stage. Plaintiff has to stand on his own leg. The plaintiff is not sure about his property. Suit is pending from 1999. Almost evidence are over. At this stage change of survey number changes the entire cause of action." Aggrieved by that order, the petitioner has filed the present Civil Revision Petition. 3. The learned counsel appearing for the petitioner/plaintiff submitted that the trial Court ought not to have dismissed the petition. Non mentioning of the correct survey number is mere mistake and also relied on the decision of the Supreme Court in the case of PEETHANI SURYANARAYANA AND ANOTHER VS. 3. The learned counsel appearing for the petitioner/plaintiff submitted that the trial Court ought not to have dismissed the petition. Non mentioning of the correct survey number is mere mistake and also relied on the decision of the Supreme Court in the case of PEETHANI SURYANARAYANA AND ANOTHER VS. REPAKA VENKATA RAMANA KISHORE AND OTHERS reported in 2009 (3) Law Weekly 756 and in the case of USHA DEVI VS. RIJWAN AHAMD AND OTHERS reported in (2008)(3) MLJ 287 in support of his contention. Therefore, the order passed by the trial Court dismissing the application is not in accordance with law and the same has to be set aside. 4. The learned counsel appearing for the defendant submitted that the trial Court has considered all the facts and circumstances of the case and correctly dismissed the application as the application for amendment has been filed for a second time at a belated stage and the same has to be confirmed. 5. Heard the learned counsel appearing on either side. There is no dispute that the amendment is relating to the suit survey number. The plaintiff wrongly stated the survey number and therefore, on an earlier occasion, I.A.No.14010 of 2007 has been filed and the same was allowed on 18.08.2007 and S.No.237/1 was amended as 137/1. Now, second amendment petition has been filed to amend the suit survey number as 147/1 instead of 137/1. The Supreme Court has considered the scope of amendment in the case of PEETHANI SURYANARAYANA AND ANOTHER VS. REPAKA VENKATA RAMANA KISHORE AND OTHERS reported in 2009 (3) Law Weekly 756 cited supra, wherein in paragraph 14 it has been held as follows: "14. On a query made by us, it was stated at the bar that the deeds of sale dated 20.6.1992 and 07.08.1992, in terms whereof the appellants purchased share in the joint family property, consisted of a suit lands including the aforementioned Town Survey No.463. It is not the case of any of the party to the suit that the Town Survey No.462 was the joint family property or could have otherwise been the subject matter of the said suit for partition. In Sajjan Kumar V. Ram Kishan ( (2005) 13 SCC 89 ), this Court held: "5.. It is not the case of any of the party to the suit that the Town Survey No.462 was the joint family property or could have otherwise been the subject matter of the said suit for partition. In Sajjan Kumar V. Ram Kishan ( (2005) 13 SCC 89 ), this Court held: "5.. Having heard the learned counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 CPC would not have been strictly applicable. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the plaintiff-appellant succeeding in the suit." 6. In the case of USHA DEVI VS. RIJWAN AHAMD AND OTHERS reported in (2008)(3) MLJ 287, the Supreme Court has held that the prayer for amendment related to correction of description of suit property in plaint deserves to be allowed. 7. After taking into consideration of the above principles enunciated in the above judgments and also considering the facts and circumstances of the case, the trial Court ought to have allowed the application. The only reason assigned by the learned trial Judge is that the petition to amend the survey number was filed at belated stage. The amendment is only to rectify the mistake i.e. the description of the property in the schedule related to Survey No.147/1 instead of 137/1. There is no dispute regarding the same. Therefore, the order passed by the trial Court is not in accordance with law and the same has to be set aside and it is set aside. The amendment is only to rectify the mistake i.e. the description of the property in the schedule related to Survey No.147/1 instead of 137/1. There is no dispute regarding the same. Therefore, the order passed by the trial Court is not in accordance with law and the same has to be set aside and it is set aside. Accordingly, the Civil Revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.