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2013 DIGILAW 2052 (MAD)

S. Rathinam v. S. A. Palanisamy

2013-06-17

K.RAVICHANDRA BAABU

body2013
JUDGMENT 1. The present civil revision petition is filed against the order made in I.A.No.82 of 2012 in A.S.No.6 of 2008 on the file of the Sub Judge, Tiruchengode in allowing the amendment petition filed by the first respondent herein. 2. The petitioners herein are the defendants in O.S.No.241 of 1990 on the file of the District Munsif Court, Tiruchendgode. The said suit was filed for partition and the same was dismissed by the trial court on 21.12.1999. Consequently, the first respondent herein being the plaintiff in the said suit, filed the appeal before the court below in A.S.No.6 of 2008. In the said appeal, the description of the suit property was shown as, "Salem District, (now Namakkal District), Tiruchendgode Taluk, Seetharampalayam Village the lands in S.No.23/1 to an extent of 1.70.5 Hector (4.21 acres) Asst. Rs.5.26 and the lands in S.No.23/2 to an extent of 1.29.0 Hector (3.19 acres) Asst. Rs.3.99 and S.No.21/2 Punja Acre 2.30 Asst. Rs.2.88 in it ¾ share i.e. 1.72 ½ acre on the northern side and therefore total extent of the suit property is acre 9.121/2 and all its easementary rights therein." Thereafter, the present application in I.A.No.82 of 2012 came to be filed by the first respondent herein who is the appellant therein, seeking for amendment of the memorandum of grounds in respect of the description of the property as follows: "In the appeal memorandum in the description of property add 'old' in between the words Taluk and Seetharampalayam and after the word village add the following "Now 48 Kailasampalayam village". The said application was resisted by the petitioners herein. After considering their submissions and considering the fact that it is only a formal amendment in respect of the new village formed by the Government and that the suit property was previously situated in Seetharampalayam village and subsequently, the village was bifurcated with a name viz. 48 Kailasampalayam and that the suit property is coming under the new village, 48 Kailasampalayam, the court below has allowed the said amendment. Aggrieved against the same, the present civil revision petition is filed before this Court. 3. Mr.V.V.Sairam, learned counsel appearing for the petitioners submitted that though the petition filed under Order 6 Rule 17 C.P.C. in I.A.No.82 of 2012 gives the details of the proposed amendment, such details are totally absent in the affidavit filed in support of such application before the court below. 3. Mr.V.V.Sairam, learned counsel appearing for the petitioners submitted that though the petition filed under Order 6 Rule 17 C.P.C. in I.A.No.82 of 2012 gives the details of the proposed amendment, such details are totally absent in the affidavit filed in support of such application before the court below. Therefore, he contended that without there being details in the affidavit to that effect, the court below ought not to have allowed the application. He also submitted that since there is no proper pleadings, the first respondent may be at the best be given only an opportunity to file fresh application before the court below seeking for amendment of the description of the suit property with an affidavit containing full details. 4. Per contra, Mr.P.Valliappan, learned counsel appearing for the first respondent submitted that the court below has taken note that the amendment sought for is only a formal amendment in view of the bifurcation of the villages done by the Revenue Department and hence the petitioners herein cannot have any objection. He further submitted that it is not the case of the petitioners that the description of the properties shown in the amendment petition is a new property. 5. Heard Mr.V.V.Sairam, learned counsel appearing for the petitioners and Mr.P.Valliappan, learned counsel appearing for the first respondent. 6. It is not the case of the petitioners herein that the description of the suit property which is sought to be introduced by way of amendment is in effect bringing any new property. Even the counter filed by the petitioners herein in I.A.No.82 of 2012 does not anywhere say that the proposed amendment brings any new property into the picture. On the other hand, it is only stated by the petitioners that the amendment petition is filed only with the sole intention to drag on the proceedings without seeking such amendment at appropriate time. 7. No doubt, the affidavit filed by the first respondent, does not specifically state as to how the suit property got bifurcated by the Revenue Department with necessary particulars. However, at paragraph No.2 of the affidavit, it is stated that Ex.B8 reveals that the suit property situates within 48 Kailasampalayam village and therefore, the proposed amendment is sought for. Certainly, the affidavit filed by the respondent has not been properly drafted by not giving details with clarity. However, at paragraph No.2 of the affidavit, it is stated that Ex.B8 reveals that the suit property situates within 48 Kailasampalayam village and therefore, the proposed amendment is sought for. Certainly, the affidavit filed by the respondent has not been properly drafted by not giving details with clarity. But at the same time, it is made clear in the affidavit that the amendment sought for is in respect of the description of the property and while describing the property in the petition filed along with the affidavit, the details of the proposed amendment was given in clear and categorical terms. Therefore, the court below by taking note of these facts and also by specifically observing that it is only a formal amendment in respect of new village formed by the Government where the suit property is presently situated viz. at village by name 48 Kailasampalayam, the court below has allowed the application. It is also found that the amendment is not going to prejudice or cause any hardship to the petitioners herein in any manner. When such being the factual finding rendered by the court below and when it is also the fact that no new property is introduced by way of amendment, the order impugned in the civil revision petition does not warrant any interference as I find no irregularity or infirmity in the said order. In fact it is also the contention of the learned counsel for the petitioners that the respondents at the best may be given only a liberty to file fresh petition with fresh affidavit for seeking such amendment. I don't think such exercise is necessary as it is going to be a formal one, especially under the circumstances that the court below has found that the amendment is a formal one and does not bring any new property. Considering all these facts and circumstances, the civil revision petition is dismissed. 8. Learned counsel appearing for the respondents prays for the early disposal of the appeal pending before the court below, which is of the year 2008. 9. Learned counsel appearing for the petitioners submits that he is not aware of the present stage of the appeal. 10. At any event, it is admitted by both sides that the appeal is pending before the court below from the year 2008. 9. Learned counsel appearing for the petitioners submits that he is not aware of the present stage of the appeal. 10. At any event, it is admitted by both sides that the appeal is pending before the court below from the year 2008. Considering the said fact, the court below is directed to dispose of the appeal within a period of three months from the date of receipt of a copy of this order. No costs.