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2020 DIGILAW 649 (MAD)

Vellaiammal v. Sethuraman

2020-03-16

R.THARANI

body2020
JUDGMENT (Common Prayer: This Civil Revision Petition is filed under Article 227 of the Constitution of India, to reverse and to set aside the fair and decretal order dated 01.10.2018 in I.A.Nos.419 and 420 of 2018 in O.S.No.2 of 2017 on the file of the Sub Court, Paramakudi.) Common Order 1. Heard the learned counsel appearing on either side. 2. These Civil Revision Petitions have been filed against the orders passed in I.A.Nos.419 and 420 of 2018 in O.S.No.2 of 2017 dated 01.10.2018, on the file of the learned Sub Judge, Paramakudi. 3. The petitioners herein are the defendants and the respondents herein are the plaintiffs in the suit. The respondents herein have filed a suit in O.S.No.2 of 2017 for a prayer of declaration, for injunction and for mandatory injunction. In that suit, the defendants filed petitions in I.A.Nos.419 and 420 of 2018 to reopen the suit and for permission to amend the suit. The petitions were dismissed by the trial Court. Against which, the petitioners preferred these revision petitions. 4. Brief substance of the petitions in I.A.Nos.419 and 420 of 2018 is as follows: The suit was filed for partition with regard to 'A' schedule property and for declaration with regard to 'B' schedule property. The properties purchased in the name of the second plaintiff, Shanmugam, the plaintiffs' father, Alagar and their mother Kanthiammal and in the name of first defendant's husband Velu were included as suit properties. At the same time, the properties purchased in the name of the first plaintiff were not included in the suit properties. The properties in Chennai Arumpakkam were purchased in the name of the first plaintiff and that the property is also available for partition. This fact was mentioned in the written statement in paragraph no.7. The plaintiff wantedly failed to include the property in the suit schedule of properties. Those properties are to be included as 9th item in the A schedule property. To enable the Court to come to a correct conclusion, amendment in suit schedule property is necessary and the trial has to be reopened. 5. Brief substance of the counter in I.A.Nos.419 and 420 of 2018 is as follows: The plaintiffs as a joint family members worked together and purchased the properties and enjoyed the properties as a joint family property. 5. Brief substance of the counter in I.A.Nos.419 and 420 of 2018 is as follows: The plaintiffs as a joint family members worked together and purchased the properties and enjoyed the properties as a joint family property. The plaintiffs demanded declaration, for injunction regarding the B schedule properties and that the plaintiffs and Velan were living separately and were earning separately. The property prayed to be included is not a joint family property. This property was not purchased out of the income of Velu or in the name of Sethuraman. That petition mentioned property is an individual property of Sethuraman. The sale deed and settlement deed executed in favour of Sethuraman's mother and the settlement deed which was executed in favour of Shanmugam and Sundarraju, and other documents were already proved before the Court. The petition mentioned property is in the centre of Chennai city. The value of the property is more than Rs.2,00,00,000/- (Rupees Two Crores only). If the petition is allowed, this Court is not having any pecuniary jurisdiction. Since the property is situated in Chennai, this Court has no original jurisdiction. If at all bonafide is really necessary, the petitioner might have filed this petitioner much earlier. But this petition is filed only at the time of arguments with a motive to drag on the proceedings and therefore, it is prayed the petitions are to be dismissed. 6. The trial Court after considering both sides, dismissed the petitions. Against which, the petitioner preferred the revision petitions. 7. On the side of the revision petitioners, it is stated that the trial is to be reopened for adducing further evidence. The trial Court failed to consider the circumstance, under which present application was filed. The stage of the suit is not a criteria for consideration. Though the respondents filed a suit for partition, they failed to not that the property is actually situated in Chennai. 8. On the side of the petitioners, it is stated that the petitions are dismissed only on the ground of delay. In support of this contention, the judgment passed by the Hon'ble Supreme Court in the case of Sajjan Kumar v. Ram Kishan reported in (2005) 13 Supreme Court Cases 89 is cited. 9. 8. On the side of the petitioners, it is stated that the petitions are dismissed only on the ground of delay. In support of this contention, the judgment passed by the Hon'ble Supreme Court in the case of Sajjan Kumar v. Ram Kishan reported in (2005) 13 Supreme Court Cases 89 is cited. 9. The learned counsel for the petitioners would rely upon the judgment passed by this Court in the case of Rajam v. Kunjukrishnan reported in 2007-1-l.w. 983, wherein it is stated as follows: “Further, the principle that has to be borne in mine while allowing the application for amendment is that no serious prejudice will be caused to the opposite party if the application for amendment is allowed.” 10. The learned counsel for the petitioners would rely upon the judgment passed by this Court in the case of T.Ashok Surana and another v. T.Suresh Surana and another reported in 2018 (3) CTC 839, wherein it is stated as follows: “15. A partial partition may be as regards persons, who are members of the family or as regards properties which belong to it. It is settled principle of Law that a suit for partition is liable to be dismissed on the sole ground that the plaintiff has not added all the properties available, in the suit. In other words, omission to include all the family property is fatal in a suit for partition. In order to apply this principle, the property said to have been omitted to be added must be actually available. Any party who takes partial partition as a defence must be able to establish about the availability of the property by placing some material before the Court. Since in a suit for partition, the traditional understanding of the parties arrayed as a defendant can file a petition to amend the plaint by adding the parties who have been omitted or adding properties, which have been left out. The concept of 'dominus litus' will not apply in a suit for partition.” 11. On the side of the respondents, it is stated that the suit was filed for partition. Entire evidence was over and the suit is pending for arguments and that the petitioners should have filed these petitions before the trial. The properties to be included is not a joint family property. The value of the property is more than Rs. 2,00,00,000/-. On the side of the respondents, it is stated that the suit was filed for partition. Entire evidence was over and the suit is pending for arguments and that the petitioners should have filed these petitions before the trial. The properties to be included is not a joint family property. The value of the property is more than Rs. 2,00,00,000/-. By allowing amendment, the entire pecuniary jurisdiction of the Court will change and the nature of the case and the trial will be affected. There is no question of partial partition. 12. On the side of the petitioners, it is further stated that the change of Court due to pecuniary jurisdiction is not a ground to deny amendment and the amendment which was sought for, will not affect the nature of the suit. 13. It is seen that the suit was filed in the year 2017. The petitioners should have filed these petitions as soon as they filed the written statement. Unfortunately the petitioners failed to file such a petition for amendment before the commencement of the trial. But filing it at the fag end of the trial may affect the pecuniary jurisdiction of the Court, which may affect the entire trial and it is not acceptable. The petitioners should have proved that they acted in spite of due diligence, therefore, the amendment cannot be sought for at this belated point of time. 14. Hence, there is no reason to interfere in the order passed by the trial Court. If at all necessary, the petitioners can take separate proceedings against the properties sought to be included by way of amendment. 15. With the above observation, these Civil Revision Petitions are dismissed and the order passed in I.A.Nos.419 and 420 of 2018 in O.S.No.2 of 2017 dated 01.10.2018, on the file of the learned Sub Judge, Paramakudi is confirmed. No Costs. Consequently, connected miscellaneous petition is closed.