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2012 DIGILAW 1853 (MAD)

Subbiah Gounder @ Subbanna Gounder v. Pagathal

2012-04-11

G.RAJASURIA

body2012
JUDGMENT 1. Inveighing the order dated 26.10.2010 passed by the District Munsif Court, Palladam in I.A.Nos.1398 & 1399 of 2010 in O.S.No.106 of 1975 (District Munsif Court, Tiruppur), respectively, these revision petitions are filed. 2. Heard both sides. 3. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the lower Court. 4. A summation and summarisation of the germane facts absolutely necessary for the disposal of these revisions would run thus: (i) The original suit was filed by three persons, namely, 1.Suppathal, 2.Palanathal and 3.Pagathal as against the following five defendants: 1. Subbiah Gounder 2. Murugaswamy 3. Kumaraswamy Gounder 4. Murugaswamy Gounder 5. Subbiah Gounder (ii) The suit was decreed ex-parte and the preliminary decree was passed. Then steps have been taken by the plaintiffs to obtain final decree and in that process necessary applications were filed. (iii) While so, the plaintiffs took steps by filing I.A.Nos.1398 and 1399 of 2010 with the following prayers: "I.A.No.1398 of 2010: may be pleased to permit me to amend the affidavit in the I.A.No.1205 of 2009 and pass suitable orders."(extracted as such) "I.A.No.1399 of 2010: may be pleased to permit me to amend the affidavit in the I.A.No.577 of 2009 and pass suitable orders."(extracted as such) (iv) Notice was ordered in both the applications, whereupon the revision petitioner herein in both the applications entered appearance and filed his counter resisting the prayers as found set out supra. (v) Whereupon, after hearing both sides, the trial Court allowed the applications, permitting the petitioners therein to effect amendment of the name of the 5th defendant as Subbiah Gounder @ Subbanna Gounder. 5. Being aggrieved by and dissatisfied with the said common order passed by the trial Court, these revisions have been focused on various grounds. 6. The learned counsel for the revision petitioners, by placing reliance on the grounds of revisions, would develop his arguements to the effect that there was no reason at all for ordering such amendment. The said final decree application cannot be amended unless the plaint and the preliminary decree are amended. The preliminary decree was obtained as against the defendants citing the 5th defendant as Subbiah Gounder and not as Subbanna Gounder. 7. Whereas, the learned counsel for the respondents herein/plaintiffs would develop his argument to the effect that absolutely there is nothing wrong in the order. The preliminary decree was obtained as against the defendants citing the 5th defendant as Subbiah Gounder and not as Subbanna Gounder. 7. Whereas, the learned counsel for the respondents herein/plaintiffs would develop his argument to the effect that absolutely there is nothing wrong in the order. In the vakalat filed by the 5th defendant, at the suit stage, his name was found therein as Subbiah Gounder only, which was tallying with the description as found in the plaint. Subsequently, the plaintiffs came to know, at the final decree stage that D5 is also called as Subbanna Gounder and as such, for the purpose of avoiding unnecessary confusion and complication such applications were filed for effecting amendment in the final decree applications, referred to supra. Accordingly, the learned counsel for the respondents/plaintiffs would pray for the dismissal of the revision. 8. The points for consideration are as under: (i) Whether the amendment should have been sought for amending the plaint as well as the preliminary decree also along with prayer to get amended the cause title in the two applications filed one for obtaining final decree and another for amending the final decree application. (ii) Whether there is any perversity or illegality on the part of the lower Court in ordering such amendment? 9. A bare poring over and perusal of the common order passed by the lower Court would reveal that there is absolutely no doubt about the identity of D5 and it was only a typhographical error, which was sought to be amended. With that observation the lower Court allowed both the applications. 10. I would like to point out that whenever after passing of the decree or preliminary decree any amendment has to be effected, legally, as suggested by the revision petitioners, there should be amendment of the plaint as well as the decree or the preliminary decree concerned concerned. However, that exercise was not done. However, while the lower Court ordering those two applications could have very well ordered amendment of the plaint as well as the preliminary decree, because that becomes only consequential and this Court, even at this stage , can rectify that error, which would have no effect of causing prejudice to the revision petitioners or to any other party. 11. However, while the lower Court ordering those two applications could have very well ordered amendment of the plaint as well as the preliminary decree, because that becomes only consequential and this Court, even at this stage , can rectify that error, which would have no effect of causing prejudice to the revision petitioners or to any other party. 11. The main point to be considered in this case is as to whether there is any dispute about the identity of D5 referred to in the plaint. 12. Scarcely could be stated that the plaintiffs proceeded in the suit as against one Subbiah Gounder, who is not the revision petitioner herein. In fact, the revision itself has been filed specifying the petitioner's name as Subbiah Gounder @ Subbanna Gounder. There is no denying that the objections sought to be raised by the revision petitioner is only technical and not substantial. If there is any real doubt about the identity of D5 concerned, then the matter would entirely be different and in that case, a broad based roving enquiry has to be conducted. But that is not the case here at all. 13. At this juncture, I would like to also point out that the use of alias name is having special significance, whereas, the use of the term 'aka', which means ‘also known as’, the problem would be solved. Here Subbiah Gounder was cited as D5. According to the plaintiffs, he was also called as Subbanna Gounder. It is also not the case of the revision petitioner that he was neither called as Subbiah Gounder nor as Subbanna Gounder. It is also not his case that he is neither Subbiah Gounder nor as Subbanna Gounder. In such a case, only to pay safe, the plaintiffs want to incorporate both the names, wherefore the use of the word ‘aka’, which means ‘also known as’, in between the names Subbiah Gounder and Subbanna Gounder, would solve the problem and the same amendment shall be carried out in all the proceedings, so to say, in the plaint, the preliminary decree as well as in those two applications, referred to supra. The question of limitation does not arise in matters of this nature, because, corrections of mistakes in the Court proceedings without affecting the substantial right of the parties could be got effected at any time and at any stage. The question of limitation does not arise in matters of this nature, because, corrections of mistakes in the Court proceedings without affecting the substantial right of the parties could be got effected at any time and at any stage. Accordingly, both the revisions are disposed of. However, there is no order as to costs. Consequently connected miscellaneous petition is closed.