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2019 DIGILAW 491 (MAD)

Vijaya @ Vijayalakshmi v. Poosari

2019-02-22

R.THARANI

body2019
JUDGMENT : 1. Heard Mr.P.Sesubalan Raja, learned counsel appearing for the petitioners and Mrs.Parameshwari, learned counsel appearing for the respondents. 2. This petition has been filed against the order passed in I.A.No.742 of 2014 in O.S.No.152 of 2011 dated 15.06.2015 by the learned District Munsif, Lalgudi. 3. The petitioners are the defendants and the respondents are the plaintiffs in the suit. The respondents filed a suit in O.S.No.152 of 2011 before the learned District Munsif, Lalgudi to declare the general power of attorney as null and void. The respondents herein filed a petition in I.A.No.742 of 2014 for a prayer of amendment in the plaint. The said petition was allowed by the trial Court. Against that order, the revision petitioner has filed this revision petition. 4. On the side of the petitioners, it is stated that the suit was filed on 29.04.2011 for a prayer of declaring the general power of attorney as null and void. It is stated that on 21.07.2009 itself, the petitioners filed a suit in O.S.No.184 of 2009 against the respondents for a prayer of injunction and in that suit, the present respondents have filed a written statement. It is stated that in the plaint in O.S.No.184 of 2009, the petitioners have stated that they have purchased the suit properties through two sale deeds dated 17.08.2005 and 22.12.2006. After three years from the date of filing of the suit in O.S.No.184 of 2009, the respondents have herein filed a suit in O.S.No.154 of 2011 for a prayer of declaring the general power of attorney as null and void. Even then the respondents did not take steps to seek a prayer for setting aside the sale deeds. In the year 2014 I.e., on 06.08.2014, the respondents herein filed a petition in I.A.No.742 of 2014 seeking for a prayer of amendment to insert the relief of setting aside the sale deeds. 5. On the side of the petitioners, it is stated that the respondents are aware of the sale deeds in the year 2009 itself, but they sought for a prayer of setting aside the sale deeds only in the year 2014 and the prayer is time bared and the limitation period is over and that the respondents have admitted that they are aware of the suit in O.S.No.184 of 2009. It is stated that though the respondents seek for a prayer of amendment, the respondents have not come forward to implead the vendors or the power agents who have executed the impugned sale deeds in the suit and that the trial Court without considering the question of limitation and without considering the delay has mechanically allowed the petition on payment of cost of Rs.500/- and that the order is to be set aside. 6. On the side of the respondents, it is stated that the suit filed by the petitioners in O.S.No.184 of 2009 was dismissed for default and the delay excuse petition to condone the delay in filing the set aside petition also was dismissed on 27.06.2011 and the petitioners have not taken any steps to restore the original suit in O.S.No.184 of 2009 and that the general power of attorney is a fraudulent document and that based on that document, a third party has executed sale deeds in favour of the petitioners and that to set aside the sale deeds, the prayer in the plaint has to be amended. It is stated that no separate suit for setting aside the sale deeds is necessary if the prayer is allowed in the suit itself. 7. A perusal of the copy of the plaint in O.S.No.154 of 2011 reveals that the respondents are aware of the previous litigation in O.S.No.184 of 2009 wherein it is clearly stated that the petitioners herein have purchased the suit properties through two sale deeds. The copy of the plaint in O.S.No.184 of 2009 reveals that the respondents herein are the defendants in the suit. It is seen that the respondents herein have filed a written statement in O.S.No.154 of 2011. Though the respondents are aware of the sale deeds in the year 2009 itself, they have not chosen to sought for a relief of setting aside the sale deeds within the period of limitation. 8. From the statements of the plaint, it is clear that the prayer for setting aside the sale deeds is barred by limitation and the delay in filing the amendment petition is not explained by the respondents. The trial Court has discussed the Judgment reported in the case of Revajeentu Builders and Developers v. Narayanaswamy and Sons and Ors. 8. From the statements of the plaint, it is clear that the prayer for setting aside the sale deeds is barred by limitation and the delay in filing the amendment petition is not explained by the respondents. The trial Court has discussed the Judgment reported in the case of Revajeentu Builders and Developers v. Narayanaswamy and Sons and Ors. in 2009 (10) SCC 84 in the case of wherein it is stated that that the Court should decline amendments if a fresh suit on the amended claims would be bared by limitation on the date of application. 9. The two sale deeds were of the year 2005 and 2006 respectively but the amendment petition was filed only in the year 2014. Though the respondents are aware of the sale deeds in the year 2011 they have not come forward to seek this prayer at the time of filing of the suit. The respondents have not come forward to implead the vendors of the petitioners in the suit. 10. In the above circumstances, this petition is allowed and the order passed in I.A.No.742 of 2014 in O.S.No.152 of 2011 dated 15.06.2015 by the learned District Munsif, Lalgudi is set aside. No Costs. Consequently, M.P.(MD)No.1 of 2015 is closed.