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2017 DIGILAW 2911 (MAD)

T. Arjunan v. John Alberk

2017-08-29

T.RAVINDRAN

body2017
ORDER : The revision petitioner/plaintiff has laid the suit for specific performance and permanent injunction. It is found that the respondents/defendants at the first instance, on account of their failure to file written statement, had been set ex parte. Thereafter, it is found that the respondents/defendants preferred an application to set aside the ex parte order passed against them along with the written statement. In the written statement filed, according to the revision petitioner/plaintiff, it has been averred by the defendants 1 and 2 that they have sold an extent of three cents in the property involved in the subject matter, on 21.05.2012, to one S.R.Rajam, who is, according to the revision petitioner/plaintiff, none other than the servant-maid of the defendants 1 and 2 and who has no independent source of income to purchase the said property and further according to the revision petitioner/plaintiff, the said alienation has been done only with a view to defeat his valuable rights in the suit property and the same is a fraudulent transaction and it would not bind upon him and in such view of the matter, according to the revision petitioner/plaintiff, he has been necessitated to file the application for amendment of the plaint, as regards the above acts of the respondents/defendants, particularly, seeking for declaration that the sale effected by the defendants in favour of S.R.Rajam is null and void and unenforceable under law and the allied facts with reference to the same. It is found that S.R.Rajam had already been impleaded as the third respondent in the suit. 2. The above said amendment application preferred by the revision petitioner/plaintiff is resisted by the defendants, contending that the revision petitioner/plaintiff is not entitled to seek for declaration that the sale effected in favour of the third defendant is null and void and unenforceable under law. The revision petitioner/plaintiff, if at all is aggrieved by the above said alienation, should lay only a separate suit and not seek for the relief of amendment in the present suit and if the amendment is entertained, it will affect the defence set out by the defendants and further, it is stated that the revision petitioner/plaintiff has not properly valued the relief sought for by way of the proposed amendment and hence, the application is liable to be dismissed. 3. 3. The Court below, on a consideration of the rival contentions put forth by the respective parties, dismissed the application for the amendment preferred by the revision petitioner/plaintiff on the sole ground that if the amendment sought for is entertained, it would amount to damaging the defence available to the defendants. Impugning the same, the present civil revision petition has been preferred. 4. As seen above, the suit has been laid by the revision petitioner/plaintiff for specific performance directing the defendants to execute the sale deed in his favour in respect of the suit property. Now, according to the revision petitioner/plaintiff, pending the execution of the sale agreement, the defendants 1 and 2 have alienated a portion of the suit property to the third defendant, who is none other than their servant-maid. Further, according to the plaintiff, the alienation above mentioned has been effected only with a view to defeat the rights of the revision petitioner/plaintiff in the suit property and in such view of the matter, according to the revision petitioner/plaintiff, he has been necessitated to seek for the relief of declaration that the above said alienation effected in favour of the third defendant is null and void and unenforceable under law and therefore, the amendment application. The resistance made by the defendants to the same is only on the sole ground that if the same is entertained, it would affect their valuable defence in the suit and if at all, the revision petitioner/plaintiff is aggrieved by the said alienation, the remedy available to him is only to lay a separate suit and not by way of the amendment in the present suit. As found above, the contentions of the defendants found acceptance by the Court below. 5. However, a perusal of the amendment sought for by the revision petitioner/plaintiff would go to show that the same had been sought for only on account of the subsequent events, which had occurred after the institution of the suit. When the defendants 1 and 2 are made clear and put on notice that the revision petitioner/plaintiff has laid the suit for specific performance against them in respect of the suit property, their act in alienating a portion of the same to the third defendant, as rightly argued, would be hit by the sale agreement. When the defendants 1 and 2 are made clear and put on notice that the revision petitioner/plaintiff has laid the suit for specific performance against them in respect of the suit property, their act in alienating a portion of the same to the third defendant, as rightly argued, would be hit by the sale agreement. Be that as it may, when according to the revision petitioner/plaintiff, the said transaction is nothing but a fraudulent transaction made only with a view to defeat his valuable rights, it is found that the revision petitioner/plaintiff would be entitled to seek for the necessary relief with reference to the same in the suit laid by him and the revision petitioner/plaintiff is not required to file a separate suit for the said relief. The object of Order VI Rule 17 of the Code of Civil Procedure is to avoid multiplicity of the suit proceedings. When it is found that the revision petitioner/plaintiff would be entitled to seek the relief of declaration by way of the proposed amendment in the present suit itself, the determination of the Court below that if the said amendment is entertained, the same would affect the valuable defence of the defendants as such cannot be accepted in any manner. It is not as if the revision petitioner/plaintiff is introducing new facts as such in the plaint by way of the proposed amendment. On the other hand, as per the case of the revision petitioner/plaintiff, inasmuch as the defendants 1 and 2 pending the execution of the sale agreement, had alienated the suit property in favour of the third defendant, according to the revision petitioner/plaintiff, the proposed amendment is sought for. The contention put forth by the defendants that the relief sought for by way of the proposed amendment has not been properly valued as such cannot be accepted, when it is seen that the same has been done properly. 6. The contention put forth by the defendants that the relief sought for by way of the proposed amendment has not been properly valued as such cannot be accepted, when it is seen that the same has been done properly. 6. In the light of the above discussions, when the proposed amendments sought for by the revision petitioner/plaintiff are found to only expand, elucidate and explain the pleadings already set out in the plaint and also taking into account the subsequent events, which had occurred in respect of the suit property and which, according to the revision petitioner/plaintiff, is done by the defendants with a view to defeat his valuable rights in respect of the suit property and further, when it is found that the proposed amendments are essential and necessary for the purpose of determining all the real questions in controversy between the parties, in my considered opinion, the Court below, has erred in dismissing the amendment application on the footing that if the same is entertained, it would affect the defence of the defendants. The above reasoning of the Trial Court for declining the amendment application, in my considered opinion, is not correct and proper and therefore, the impugned order of the Court below is liable to be set aside. 7. In conclusion, the fair and decreetal orders, dated 13.04.2017, made in I.A.No.375 of 2016 in O.S.No.107 of 2012, on the file of the District Court, Kanyakumari District at Nagercoil, are set aside and consequently, I.A.No.375 of 2016 is allowed. Accordingly, the civil revision petition is allowed with costs. Consequently, connected civil miscellaneous petition is closed.