Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 3313 (MAD)

S. Venkatasubramanian v. S. Kannammal

2012-07-26

M.VENUGOPAL

body2012
Judgment :- 1. The Revision Petitioner/Plaintiff has focussed the present Civil Revision Petition as against the order dated 21.11.2009 made in I.A.No.1160 of 2009 in O.S.No.386 of 2005 on the file of the Principal District Munsif, Kallakurichi, in dismissing the Application praying for amendment of short and long cause title in the Plaint (as stated therein). 2. The trial Court, while passing order in I.A.No.1160 of 2009 in O.S.No.386 of 2005 on 21.11.2009, has, inter alia, observed that 'the Revision Petitioner/Plaintiff has not proved that he has been taken in adoption by one Kuppusamy Iyer on 07.08.1959' and resultantly, dismissed the Application praying for amendment of short and long cause title in the Plaint. 3. The Learned Counsel for the Petitioner/Plaintiff submits that the trial Court, while dismissing I.A.No.1160 of 2009, has not bestowed its leniency while appreciating the fact that the amendment sought for by the Revision Petitioner is only a pre-trial amendment and in fact, there is no impediment in law to allow the amendment sought for in issue because of the fact that the trial has not commenced in the main suit by means of examination of witnesses concerned. 4. Yet another contention of the Learned Counsel for the Petitioner is that the trial Court has not taken into account the Deed of Adoption dated 07.08.1959 viz., Document No.1 filed in the suit and the trial Court has committed a serious error in coming to the conclusion that no documents have been filed to establish the case of the Petitioner/Plaintiff. 5. Finally, it is the contention of the Learned Counsel for the Revision Petitioner/Plaintiff is that the trial Court has not considered the submission of the Revision Petitioner that as per Section 12 of the Hindu Adoptions and Maintenance Act, 1956, after adoption by Petitioner/Plaintiff's grandfather, the late Kuppusamy Iyer, the Petitioner/Plaintiff ceases to be the son of his biological father late T.V.Subramania Iyer. 6. 6. Per contra, the Learned Counsel for the 2nd Respondent/2nd Defendant (purchaser of the suit property from the 1st Respondent/1st Defendant) submits that it is the stand of the 2nd Respondent/2nd Defendant in the counter in I.A.No.1160 of 2009 that the Petitioner/ Plaintiff was not taken in adoption by Kuppusamy Iyer at any point of time and when the suit posted in the list on 04.03.2009 and thereafter, when the case was adjourned on different dates, suddenly, the Petitioner has filed I.A.No.1160 of 2009 under Order 6 Rule 17 of C.P.C. praying to amend the Plaint. 7. The Learned Counsel for the 2nd Respondent/2nd Defendant brings it to the notice of this Court that the Revision Petitioner/Plaintiff is in the habit of filing application after application with a view to protract and prolong the conduct of the suit without any purpose and according to the Learned Counsel, the Revision Petitioner has filed I.A.No.4633 of 2005, I.A.No.2789 of 2006 and I.A.No.1333 of 2007 (praying for permission of the Court to file reply statement and amendments etc.). The said statement of the Learned Counsel for the 2nd Respondent/2nd Defendant is not disputed by the Learned Counsel for the Petitioner/Plaintiff. It is on record that the Revision Petitioner/ Plaintiff has projected I.A.No.4633 of 2005 seeking permission of the Court to file reply statement and later I.A.No.2789 of 2006 and I.A.No.1333 of 2007 praying for amendment of Plaint, as stated therein. 8. Obviously, the Petitioner/Plaintiff has filed one application or the other. In all, prior to filing I.A.No.1160 of 2009, he has filed three applications earlier and all the said applications have been allowed by the trial Court. 9. Be that as it may, in regard to the amendment application being filed under Order 6 Rule 17 of C.P.C., ordinarily, the Court will not enter into the arena of merits and demerits of the controversies/ disputes involved between the parties. By and large, a lenient and liberal view will be taken by a Court of Law to avoid miscarriage of justice and to prevent an aberration of justice, a pragmatic, common sense and a practical approach will be made so that no prejudice is caused to a litigant, who seeks the arms of justice. By and large, a lenient and liberal view will be taken by a Court of Law to avoid miscarriage of justice and to prevent an aberration of justice, a pragmatic, common sense and a practical approach will be made so that no prejudice is caused to a litigant, who seeks the arms of justice. But, at the same time, it is not open to the Revision Petitioner/Plaintiff to file interlocutory application one after another on some pretext of other as a matter of routine/as a matter of course. 10. In the instant case on hand, on going through the sworn affidavit filed in I.A.No.1160 of 2009 filed by the Revision Petitioner/ Plaintiff, it appears that the Petitioner/Plaintiff has mentioned that in the short cause title of the Plaint, it has been wrongly typed as 'S.Venkatasubramanian' instead of K.Venkatasubramanian' and likewise, it has been wrongly mentioned in the long cause title as 'Subramanya Iyer' instead of showing it has 'Adopted son of Late. Kuppusamy Iyer, Subramaniya Iyer's son'. 11. The specific case of the Revision Petitioner/Plaintiff is that he has been taken in adoption, by Kuppusamy Iyer on 07.08.1959 and according to the Petitioner, he has purchased the original Adoption Deed dated 07.08.1959. 12. It appears that the trial Court has gone into the matter by observing while passing orders in I.A.No.1160 of 2009 to the effect that the Revision Petitioner/Plaintiff has not filed any document to establish his case that he has been taken in adoption by Kuppusamy Iyer and dismissed the application. Earlier, the Revision Petitioner/ Plaintiff filed the main suit praying for the relief of permanent injunction. During the pendency of the said injunction suit O.S.No.386 of 2005, the 2nd Respondent/2nd Defendant has purchased the property from the 1st Respondent/1st Defendant viz., the mother of the Revision Petitioner/Plaintiff on 10.05.2005. Later, the Revision Petitioner/ Plaintiff has amended the Plaint seeking the relief of declaration in respect of the suit properties and also sought recovery of possession from the purchaser of the suit property viz., the 2nd Respondent/2nd Defendant. 13. Later, the Revision Petitioner/ Plaintiff has amended the Plaint seeking the relief of declaration in respect of the suit properties and also sought recovery of possession from the purchaser of the suit property viz., the 2nd Respondent/2nd Defendant. 13. This Court aptly points out the decision of the Hon'ble Supreme Court inSurender Kumar Sharma V. Makhan Singh (2009) 10 SCC 626 at page 627 wherein it is held that 'even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused, if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs.' As a matter of fact, to avoid plurality of proceedings a pre trial amendment is to be allowed to prevent an aberration of justice. 14. It is to be noted that a mistake or an error which if not fraudulent one should not be the basis for rejecting the application for amendment of plaint or written statement as the case may be. In that view, a mere delay and latches in making the application for amendment cannot be a ground to refuse the amendment. 15. By taking a liberal and lenient view based on the settled legal position that at the time of allowing the amendment application, a Court of Law is not to look into the merits and demerits of the claim and controversies between the parties, this Court, in the interest of justice, allows the Civil Revision Petition by setting aside the order in I.A.No.1160 of 2009 passed by the trial Court in furtherance of substantial cause of justice. However, this Court directs the Revision Petitioner/Plaintiff to pay a cost of Rs.500/- (Rupees Five hundred only) as compensation to the 2nd Respondent/2nd Defendant, by means of depositing the said amount to the credit of the suit O.S.No.386 of 2005, within a period of four weeks from the date of receipt of copy of this order. 16. In the result, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. Consequently, the order passed by the trial Court viz., Principal District Munsif, Kallakurichi dated 21.11.2009 in I.A.No.1160 of 2009 in O.S.No.386 of 2005 is set aside. 16. In the result, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. Consequently, the order passed by the trial Court viz., Principal District Munsif, Kallakurichi dated 21.11.2009 in I.A.No.1160 of 2009 in O.S.No.386 of 2005 is set aside. The Revision Petitioner/Plaintiff to pay a cost of Rs.500/- (Rupees Five hundred only) as compensation to the 2nd Respondent/2nd Defendant, within a period of four weeks from the date of receipt of copy of this order. Consequent to the Civil Revision Petition being allowed by this Court, it is open to the 2nd Respondent/2nd Defendant to file any subsequent pleadings as per Order 8 Rule 9 of C.P.C. before the trial Court (if need be and if situation so warrants). Since the suit is ready for trial, the parties are directed to lend a helping hand to the trial Court in disposing of the main suit and further, the trial Court is directed to dispose of the main suit within a period of three months from the date of receipt of copy of this order. Consequently, connected Miscellaneous Petition is closed.