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2011 DIGILAW 3373 (MAD)

Manjula Jothi v. B. Kannammal

2011-07-22

M.VENUGOPAL

body2011
JUDGMENT :- 1. The Petitioner/Plaintiff has filed the present revision petition as against the orderdated 17.04.2009 in I.A.No.166 of 2009 in O.S.No.5 of 2007 on the file of the Learned Additional District Judge cum Fast Track Judge No.I, Erode. 2. The trial Court while dismissing the I.A.No.166 of 2009 filed by the Revision Petitioner/Plaintiff prayed for amendment of plaint as per Order VI Rule 17 of the Civil Procedure Code has among other things observed that "the 4th and 5th respondents are the children of the petitioner and their father as guardian has been conducting the suit and it is for the said father as guardian to file the amendment application and it is not for the Revision Petitioner/ Plaintiff to file the present amendment application, which is contrary to law and resultantly, dismissed the application without costs". 3. Before the trial Court, in I.A.No.166 of 2009 the Revision Petitioner/Plaintiff in paragraph-3 has inter alia observed that the Defendants 1 & 3 have on 19.11.2007 projected an affidavit mentioning that they are giving up their rights and shares in the suit property, thereby they are retiring from the suit with a memo, which has been recorded on 28.11.2007, resulting in their civil death and further, the remaining two-third of their shares devolved upon the Defendants 4 & 5 by the said retirement and as such, the Defendants 4 & 5 have become entitled to the two-third shares in the suit properties, which originally belonged to Defendants 1 & 3. In this background, the Revision Petitioner/Plaintiff has sought for an amendment of the plaint, since according to the Revision Petitioner/ Plaintiff, if the application is not allowed, the same will lead to unnecessary complicating claims by the other Defendants. 4. In short, the Learned Counsel for the Revision Petitioner/Plaintiff submits that the amendment sought for by the Revision Petitioner/Plaintiff has become very necessary and by allowing the said amendment, no irreparable loss or hardship will be caused to the other side. 5. Before the trial Court, Respondents 2 & 14 have filed a memo of counter, wherein they have taken a categorical plea that the Revision Petitioner/Plaintiff is not entitled to claim that subsequent to the suit, if a particular Defendant abandons right in the suit, it does not amount to transfer of right in favour of a particular party to the suit. Moreover, the property of a living person shall not be transferred, unless bequeathed in a testament. Also a plea has been taken that the proposed amendment claiming the right of Defendants 1 & 3 cannot be done by the Revision Petitioner/ Plaintiff for the Defendants 4 & 5, since it is the duty of the Defendants 4 & 5 to plead the right, if any. Further, it is not open to the Revision Petitioner/Plaintiff to plead for their cause and seek the proposed amendment. 6. Notwithstanding the fact that the Respondents 4 & 5 are the Revision Petitioner's children, for them the legal proceedings are conducted by their Father as Guardian. In law it is for the Guardian to take care of the interest of the parties for whom he or she appears. Apart from the said Guardian, it is not open to any other person much less the Revision Petitioner/ Plaintiff to seek for the proposed amendment as per Order VI Rule 17 of the Civil Procedure Code as more particularly mentioned in the said petition. Viewed in that perspective, the Revision petition fails. 7. In the result, the revision petition is dismissed, leaving the parties to bear their own costs. Consequently, the connected miscellaneous petition is closed.