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2013 DIGILAW 922 (MAD)

Palanisamy v. Sellammal

2013-02-13

M.VENUGOPAL

body2013
Judgment :- 1. The Petitioner/Plaintiff has filed the instant Civil Revision Petition as against the order dated 27.01.2011 in I.A.No.2049 of 2010 in O.S.No.264 of 2007 passed by the Learned Additional District Munsif, Namakkal. 2. According to the Learned Counsel for the Petitioner/Plaintiff, the Petitioner/Plaintiff filed O.S.No.264 of 2007 on the file of the Learned Additional District Munsif, Namakkal, seeking relief of permanent injunction restraining the Respondents/ Defendants from interfering, in any manner, with the peaceful possession and enjoyment of the suit property. It comes to be known that the First Respondent/First Defendant has filed the written statement (adopted by other defendants) and as on date, the suit in O.S.No.264 of 2007 is pending. It further transpires that a partition suit in O.S.No.120 of 2008 has been filed by the Respondents/Defendants before the trial Court in which the written statement has been filed and the matter is pending as on date. 3. A scrutiny of the affidavit in I.A.No.2049 of 2010 filed by the Petitioner/Plaintiff (before the trial Court) shows that the Petitioner/ Plaintiff, in paragraph-2, has stated hereunder: "2. On a perusal of the Plaint I came to know that in the Schedule Properties two items have been left out to be included. It is only due to inadvertence the same has occurred. Unless those two items are also included in the Schedule of Properties I would be put to irreparable loss and injury." 4. Further, he has also stated that I.A.No.2049 of 2010 has been filed praying permission of the trial Court to amend the description of property and to include the items that have been left out. In the counter filed by the First Respondent/First Defendant (before the trial Court), it is mentioned that the Petitioner/ Plaintiff has filed the suit in O.S.No.264 of 2007 in respect of the lands in Survey Nos.141/10 and 141/17. On 22.02.2008, the Respondents/Defendants have filed O.S.No.120 of 2008 seeking partition of the Schedule properties mentioned therein and in the comprehensive suit, the two items purportedly, left out by the Petitioner/Plaintiff in O.S.No.264 of 2007, have been included. When a Court of Law deals with an amendment of plaint application, it may adopt a lenient and liberal view, so as to secure the ends of justice. 5. When a Court of Law deals with an amendment of plaint application, it may adopt a lenient and liberal view, so as to secure the ends of justice. 5. In the instant case on hand, the Petitioner/ Plaintiff in O.S.No.264 of 2007 (seeking relief of permanent injunction) in paragraph-6 has interalia stated that the Defendants in order to stake claim in the Schedule property are now planning to obstruct the plaintiff from putting up construction. This has come to the knowledge of the Plaintiff on 24.03.2007. The Defendants have no manner of right in the Schedule Property and only to grab the suit property from the Plaintiff, the plan seems to have been hatched. As such the Petitioner/Plaintiff has sought for the relief of permanent injunction interdicting the Respondents/Defendants from interfering with the peaceful possession and enjoyment of the suit property. Even in the cause of action paragraph of the plaint, in paragraph-7, the Petitioner/Plaintiff has simple averred the following: "7. Cause of action for this suit arose on 24.03.2007 when the Defendants plan came to the knowledge of the Plaintiff at Pappinaickenpatty Village, where the Schedule Property exists within the jurisdiction of this Hon'ble Court." 6. It cannot be gainsaid for an amendment of plaint there must be categorical, effective and efficacious pleading to be projected by the Party/Litigant concerned. In the instant case on hand, even though amendment of plaint sought under Order 16 Rule 17 of the Civil Procedure Code, ordinarily can be allowed by a Court of Law by taking a liberal view in the matter on the basis of the facts and circumstances encircling the case which float on the surface, this Court comes to the conclusion that the Petitioner/Plaintiff in I.A.No.2049 of 2010 has not come out with definite/ specific pleadings as to why he has left out the two items of property (at earlier point of time) purportedly to be included by means of amendment being sought by him. For want of inaction, due diligence and bonafideness, this Court is not inclined to allow I.A.No.2049 of 2010 in the interest of justice. Furthermore, on going through the order of the trial Court in I.A.No.2049 of 2010, this Court does not find any impropriety or illegality in the application being dismissed by the trial Court. Consequently, the Civil Revision Petition fails. 7. Furthermore, on going through the order of the trial Court in I.A.No.2049 of 2010, this Court does not find any impropriety or illegality in the application being dismissed by the trial Court. Consequently, the Civil Revision Petition fails. 7. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Resultantly, the order passed in I.A.No.2049 of 2010 is confirmed by this Court for the reasons assigned in the revision. It is open to the Petitioner/Plaintiff to seek appropriate remedy in the partition suit in O.S.No.120 of 2008 in a complete and comprehensive suit for partition, in the manner known to law and in accordance with law, if so advised or if so desired. Consequently, the connected miscellaneous petition is closed.