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2009 DIGILAW 46 (MAD)

Arulmigu Ananda Vinayakar @ Thattan Pillaiyar Koil v. Kamalam @ Kamalathammal & Others

2009-01-07

G.RAJASURIA

body2009
Judgment :- Animadverting upon the order dated 02.07.2008 passed by the learned Subordinate Judge, Nagapattinam in I.A.No.16 of 2008 in O.S.No.42 of 2007, this civil revision petition is focussed. 2. Heard both sides. 3. A "resume" of facts, which are absolutely necessary and germane for the disposal of this revision would run thus: The plaintiff filed the suit for declaration of title and for possession of the Trust property. During the pendency of the suit, I.A.No.16 of 2008 was filed by the plaintiff for getting the plaint amended by way of deleting the prayer for declaration. However, the trial Court dismissed it. Being aggrieved by and dissatisfied with the order of the trial Court, the present revision petition has been filed on various grounds. 4. The learned counsel for the petitioner/plaintiff by placing reliance on the grounds of revision would develop his argument to the effect that the plaintiff being a Trust, during the pendency of the suit thought it fit not to press for the relief of declaration of title as it was satisfied only with the prayer for recovery of possession and such a prayer in fact was innocuous, but the trial Court unjustifiably dismissed it. It is also the contention of the learned counsel for the revision petitioner that it is for the plaintiff to prove his case before the Court and get a decree and the Court,wrongly assumed as though the plaintiff intended to evade Court fee. 5. The learned counsel for the third respondent would develop his argument to the effect that the suit itself is barred in view of the embargo as contained in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) and the proper forum would be the Debts Recovery Tribunal. 6. When all said and done, considering the pro et contra, in this factual matrix, I am of the considered view that the trial Courts approach in giving a finding that the petitioner is trying to avoid payment of Court fees is erroneous. It is a common or garden principle in law that the plaintiff is dominus litis and it is for him to press for a relief or to get his relief deleted from the plaint. It is a common or garden principle in law that the plaintiff is dominus litis and it is for him to press for a relief or to get his relief deleted from the plaint. After getting deletion of one of the prayers, it is for him to satisfy the Court during the trial as to how far the remaining relief is sustainable in the eye of law. The onus of proof is on the plaintiff to prove his case and adduce evidence in support of the relief which he seeks. 7. In this case the plaintiff is satisfied with his prayer for recovery of possession and according to him, he is capable of getting recovery of possession. In such a case it is not for the Court to reject without au courant with fact and au fait with law the prayer of the petitioner to get deleted the prayer for declaration of title and also the relevant averments from the plaint. I make it clear that it is for the plaintiff to prove his case and the Court is always at liberty either to decree or dismiss the suit based on merits and also decide on the point as to whether the suit is bad for want of a prayer for declaration of title. It is also a trite proposition that the plaintiff is at liberty to restrict his claim during the pendency of the suit. Accordingly, this revision petition is allowed setting aside the order of the trial Court in I.A.No.16 of 2008. No costs. Consequently, connected miscellaneous petition is closed. 8. The learned counsel for the respondents would make an extempore submission that the suit itself is not maintainable before civil Court in view of SARFAESI Act and I would like to observe that it is for R3 to file necessary application or press for taking up as a preliminary issue the said point before the lower Court and the same shall be considered by the Court on merits. In fact the Court could have considered such jurisdictional issue while adjudging the I.A.16 of 2008 itself.