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2018 DIGILAW 3723 (MAD)

Marappan v. S. Ammasi

2018-10-10

P.T.ASHA

body2018
JUDGMENT : P.T. Asha, J. This Civil Revision Petition is filed challenging the order passed by the learned District Munsif, Sankari in I.A.No.109 of 2012 in O.S.No.336 of 1994 dated 07.02.2012 in and by which the learned judge has allowed the amendment petition filed by the first respondent herein, who is the plaintiff in the suit O.S.No.336 of 1994. 2. The suit in O.S.No.336 of 1994 has been filed for partition and possession of the first respondent's 7/24th share in the suit schedule properties which covers various survey numbers in Thevur village, Kuttakkadu, Salem district and in Kaveripatti village, Kondasankadu, Salem district described as Item No.1 & 2 in the suit schedule. 3. From the records, it is seen that the third defendant had filed a written statement, which was adopted by the defendants 4 to 6/respondents 3 to 5 herein on 02.02.1999 and the 7th defendant/revision petitioner herein had also filed a written statement dated 02.02.1999. The revision petitioner along with the 4th defendant/the 3rd respondent herein had also filed additional written statements on 22.11.2010 and 27.01.2011. These additional written statements had to be filed on account of the various applications being moved by the first respondent for amending the plaint. When the matter was posted for arguments, the first respondent came forward with the impugned application seeking to amend the plaint in the affidavit filed in support of the said application. The first respondent had cited the following reasons for seeking the amendment: A. In the additional written statement filed by the defendants on 22.11.2010, they have alleged that some survey numbers are not included in the schedule of suit properties and that the suit is brought for partial partition. B. In the sale deed dated 14.09.1992 of the first respondent, there has been a typographical error with reference to some of the survey numbers which the first respondent would contend is on account of ignorance. The first respondent would also submit that rectification deed was executed on 11.10.2011. 4. In these circumstances, the first respondent had sought to amend the plaint which according to him are only typographical errors. The details of the amendment have been given in the impugned application. The first and second amendment was to substitute word one with seven in paragraphs 9 and 10. The third amendment was with reference to the extent in survey No.379 of 2A2. The details of the amendment have been given in the impugned application. The first and second amendment was to substitute word one with seven in paragraphs 9 and 10. The third amendment was with reference to the extent in survey No.379 of 2A2. The fourth amendment was to strike off one survey number from the array of properties. 5. The revision petitioner herein had filed a very detailed counter, which was adopted by respondents 4 to 6 in which he had contended that the suit, which was filed as early as in 1994 and in respect of which the trial had commenced on 17.08.1999 is yet to reach its logical conclusion in view of several petitions having been filed time and again by the first respondent/plaintiff. He would submit that originally the first respondent had filed three applications namely I.A.Nos.193 of 1998, 266 and 771 of 1999 to amend the plaint which included the description to property. These applications were all allowed. Thereafter, once the trial had commenced and P.W.1 was cross examined, the petitioner filed I.A.No.1305 of 1999 to amend the plaint to include houses and well. This amendment was prompted on account of the admission that the petitioner had got from P.W.1. This was followed by another amendment application in I.A.No.1515 of 1999 wherein the first respondent sought to amend the shares. By reason of this amendment, the suit, which was at that point of time pending trial was transferred to the file of the Sub-Court Sankari and renumbered as O.S.No.25 of 2000. The first respondent came forward with yet another amendment application in I.A.No.1638 of 2010 to amend the description of properties. All these applications had been allowed after contest but, however, the defendants did not choose to challenge any of these orders. 6. The counter would further state that after the evidence was complete and when the matter was posted for arguments on 21.12.2011, this amendment petition which is the 7th amendment came to be filed. It is to be noted that in the affidavit filed in support of the amendment petition the first respondent has not chosen to give any details about the earlier amendments. No substantial reasons for seeking the amendment was also given. The revision petitioner therefore sought for dismissal of the amendment petition as the same was only a ruse to protract the proceedings and attempt to fill up the lacuna. 7. No substantial reasons for seeking the amendment was also given. The revision petitioner therefore sought for dismissal of the amendment petition as the same was only a ruse to protract the proceedings and attempt to fill up the lacuna. 7. However, the learned District Munisif, Sankari allowed the application in a routine fashion only on the ground that the basic structure of the suit is not changed and no new case is introduced and that the amendment would result in complete justice being rendered. Challenging this order, the 7th respondent is before this Court. 8. Though the 2nd respondent, has not been served, however, considering the fact that the suit is adequately represented by the revision petitioner and respondents 2 to 8, this Court is not insisting upon the completion of service and the learned counsel for petitioner would also point out that the second respondent has remained ex-parte in the impugned petition. 9. Heard Mr. P. Valliappan, learned counsel for the revision petitioner and Mr. T. Karunakaran, learned counsel for the first respondent. 10. Learned counsel for the petitioner would argue that the first respondent is in the habit of filing applications each time the evidence is underway and the amendment applications are nothing but an attempt to fill up the lacuna. He would further submit that there is a deliberate suppression on the part of the first respondent in view of the fact that he has not mentioned anything about the earlier applications moved by him. He would further submit that amendment that is sought for namely the third amendment A and B would amount to filling up the lacuna since the revision petitioner had managed to get certain admissions from the witnesses and this Court should not be a party to the admission that the defendant had obtained being withdrawn by allowing the amendment. The learned counsel would rely upon the Judgment of this Court in N. Murali Vs. International Ocean Institute reported in, (2018) 5 CTC 315 in support of his arguments. 11. Mr. T. Karunakaran, learned counsel appearing on behalf of the first respondent would contend that the amendments are all very innocuous and there is no change in the basic structure or in the suit properties. International Ocean Institute reported in, (2018) 5 CTC 315 in support of his arguments. 11. Mr. T. Karunakaran, learned counsel appearing on behalf of the first respondent would contend that the amendments are all very innocuous and there is no change in the basic structure or in the suit properties. With reference to first and second amendment the learned counsel would represent that very prayer is for partition of 7/24th share and amendment 1 and 2 is only an attempt to bring the pleadings in line with the prayer. With reference to the other amendments he would submit that it is to the advantage of the revision petitioner since the extent of property is reduced and the said property even according to the revision petitioner does not belong to the family of the petitioner. Mr. T. Karunakaran, learned counsel would rely upon the Judgment of this Court in Kannan Vs. Manikammal reported in, (2017) 3 CTC 327 in support of his contentions. The said judgment is on the lines that there should not be piecemeal decree for partition being passed. 12. Heard the submissions and perused the papers it is rather unfortunate that a person who has filed a suit for partition way back in the year 1994 is not allowing the suit to reach its logical conclusion. From the averments in the counter it is seen that every time the first respondent/plaintiff faces a problem or has conceded a point he comes forward with an application for amendment and it is rather unfortunate that this dilatory tactics has not been considered by the learned District Munsif, Sankari. The first respondent has not even agreed to post this facts before this Court when the application was moved. No doubt, the Court could have perused the record but, as an applicant there is a duty cast upon the first respondent/plaintiff to place all facts for the consideration of the Court so as to enable the Court to come to a just conclusion. The conduct of the first respondent smacks of malafides. Even the amendments that are now sought for, as pointed out by the learned counsel for the respondents is no doubt innocuous but the party to the proceedings cannot use the legal proceedings to procrastinate and cannot waste judicial time by filing one application after another. 13. The conduct of the first respondent smacks of malafides. Even the amendments that are now sought for, as pointed out by the learned counsel for the respondents is no doubt innocuous but the party to the proceedings cannot use the legal proceedings to procrastinate and cannot waste judicial time by filing one application after another. 13. The amendment now sought could have been taken out when the earlier amendments where moved by the first respondent. Having kept quite for this long and having moved several applications the first respondent cannot take advantage of legal process for filling yet another application for the very same relief. It is to be noted that even these additional written statements and the rectification deed has been filed in 2011, which according to the 1st respondent is the reason for seeking the present amendment. 14. The learned counsel for the petitioner would at this juncture point out that the rectification deed had been created as early as in the 1993 much earlier than the filing of the very suit itself. 15. Considering the conduct of the first respondent in stalling the progress of the suit and the fruitless nature of the amendment petition I find the order passed by the learned District Munsif suffers from an infirmity and is to be set aside. This Civil Revision Petition is allowed and the Learned District Munsif, Sankari is directed to dispose of the suit within a period of two months from the date of receipt of a copy of the order in the revision. Since the amendment petition itself had been filed at the stage of arguments, the Court below shall ensure that the parties conclude their arguments on a day to day basis. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.