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Madras High Court · body

2022 DIGILAW 3923 (MAD)

Marimuthu (Died) v. P. Appavoo

2022-12-15

G.K.ILANTHIRAIYAN

body2022
ORDER : Prayer: Civil Revision Petition is filed under Article 227 of Constitution of India, to set aside the fair and decreetal order of the learned Principal District Munsif at Tiruchengode, dated 30.11.2012 passed in I.A. No. 671 of 2012 in O.S. No. 347 of 2004. Prayer: Civil Revision Petition is filed under Article 227 of Constitution of India, to set aside the fair and decreetal order of the learned Principal District Munsif at Tiruchengode, dated 18.02.2015 passed in I.A. No. 26 of 2015 in O.S. No. 347 of 2004. 1. The Civil Revision Petition in C.R.P. No. 119 of 2013 is directed as against fair and decreetal order dated 30.11.2012 passed in I.A. No. 671 of 2012 in O.S. No. 347 of 2004, on the file of the learned Principal District Munsif, Thiruchengode, thereby allowing the petition to amend the plaint and the Civil Revision Petition in C.R.P. No. 1842 of 2015 is directed as against fair and decreetal order dated 18.02.2015, passed in I.A. No. 26 of 2015 in O.S. No. 347 of 2004, on the file of the learned Principal District Munsif, Thiruchengode, thereby dismissing the petition to stay all further proceedings in O.S. No. 347 of 2004. 2. The first deceased respondent and another deceased Ramasamy Gounder filed a suit in O.S. No. 396 of 1991 on the file of the Sub Court, Sankari, against the deceased petitioner and two others for specific performance on the strength of the agreement for sale dated 21.01.1991, executed by the deceased defendants 1 and 2. After filing the suit, the defendants 1 and 2 died and the plaintiffs were not taken any steps to bring their legal representatives on records. Therefore, the said suit was dismissed as against them. Thereafter, the plaintiffs filed memo and the suit was restored against the deceased petitioner alone who has shown as third defendant in the suit. The said suit was transferred and renumbered as O.S. No. 374 of 2004 on the file of the District Munsif Court, Thirucehngode. 3. Thereafter the first plaintiff viz. first deceased respondent filed petition in I.A. No. 603 of 2004 to implead the second respondent herein as the legal representative of the deceased second defendant and the same was allowed. The said suit was transferred and renumbered as O.S. No. 374 of 2004 on the file of the District Munsif Court, Thirucehngode. 3. Thereafter the first plaintiff viz. first deceased respondent filed petition in I.A. No. 603 of 2004 to implead the second respondent herein as the legal representative of the deceased second defendant and the same was allowed. Again the deceased first respondent filed application under Order 6 Rule 17 of C.P.C. to amend the plaint thereby seeking relief of specific performance as against the third defendant viz. the deceased petitioner herein. It was allowed and aggrieved by the same, the deceased first petitioner filed the Civil Revision Petition in C.R.P. No. 119 of 2013. While pending the said C.R.P. No. 119 of 2013, the first deceased petitioner filed stay petition in I.A. No. 26 of 2015 and the same was dismissed by the Court below, as against which, he filed another Civil Revision Petition in C.R.P. No. 1842 of 2015. 4. The learned counsel appearing for the petitioners submitted that originally the suit was filed as against three defendants for specific performance. The plaintiffs averred that the first and second defendants executed agreement for sale on 21.01.1991, in respect of the suit property for the total sale consideration of Rs. 90,000/- and also they received major sale consideration to the tune of Rs. 80,000/- as advance. Thereafter, they failed to execute sale deed in favour of the plaintiffs, after receipt of the balance sale consideration within a period of one year from the date of agreement. 4.1. The plaintiffs further averred that the third defendant viz. the first deceased petitioner was added as a party to know the transactions between the plaintiffs and the defendants 1 and 2 and to get a binding decision upon him. Further averred that the third defendant was attempted to get some kind of deeds to be executed by the defendants 1 and 2 and as such, the third defendant was added as necessary party, in order to avoid the question of without notice by the third defendant and to apprise him about the transactions had by the plaintiffs. Therefore, he was added as a formal party to the suit. 4.2. After demise of the first defendant on 19.01.1993, the suit was dismissed as against the first defendant on 26.04.1993 itself. Therefore, he was added as a formal party to the suit. 4.2. After demise of the first defendant on 19.01.1993, the suit was dismissed as against the first defendant on 26.04.1993 itself. Thereafter the second defendant also died on 15.08.1996 and the suit was dismissed as against the second defendant on 15.07.1997 itself. Therefore, without restoring the suit, the plaintiffs cannot amend the suit as against the third defendant viz. the deceased petitioner herein. After demise of the first petitioner, his legal heirs were impleded as petitioners 2 to 4 herein. 4.3. He further submitted that the deceased first petitioner was added only as formal party and after dismissal of the suit as against the defendants 1 and 2, the plaintiffs failed to take appropriate steps to implead their legal heirs. Only on filing the memo to restore the suit as against the deceased petitioner alone and the same was recorded and the suit was restored. Therefore, the plaintiffs are estopped from contending that the deceased petitioner is the legal representative of the deceased defendants 1 and 2. 4.4. In fact, the second respondent was impleaded as fourth defendant in the suit without even ordering notice to the deceased first petitioner. Further the second respondent is neither class I nor class II heir of the deceased defendants 1 and 2. Therefore, the impleadment of the second respondent itself is illegal. The suit was dismissed as abated as far as the defendants 1 and 2 long back viz. 18 years back and the trial Court allowed the petition to implead the second respondent without any condone delay petition. 4.5. In support of his contention, he relied upon the judgment reported in S. Manoharan vs. Karunamurthy, 2013 (6) CTC 801 in which, this Court held that the application seeking alternative relief of refund of advance amount, after the period of three years from the date of dismissal of suit, such relief sought in amendment application is barred by limitation. 4.5. In support of his contention, he relied upon the judgment reported in S. Manoharan vs. Karunamurthy, 2013 (6) CTC 801 in which, this Court held that the application seeking alternative relief of refund of advance amount, after the period of three years from the date of dismissal of suit, such relief sought in amendment application is barred by limitation. He also relied upon another judgment reported in Rakesh Malhotra vs. Kamaljit Singh Sandhu and Others, 2018 (6) CTC 558 in which the Hon'ble Supreme Court of India held that the suit for declaration and specific performance was filed after the period of 17 years from the date of agreement to sell and after the period of 10 years from the date of sale deed executed by the first defendant in favour of the second defendant and therefore, the suit itself barred by limitation. 4.6. The learned counsel appearing for the petitioners also relied upon the judgment reported in P. Mariappan vs. Mohankumar, 2021 (5) CTC 727 in which this Court held that the amendment of plaint sought after commencement of trial in 2015 and the amendment not to be allowed, if fresh suit on amended claim would be barred by limitation. Hence, he prayed to allow both the Civil Revision Petitions. 5. Per contra, the learned counsel appearing for the respondents submitted that the first plaintiff filed petition seeking certain amendment in the suit. In that petition, the deceased first petitioner viz. the third defendant in the suit filed the additional written statement stating that the fourth defendant is not first class legal heir of the deceased defendants 1 and 2 and as such he is not a necessary party to the suit. Further the legal representative of the deceased defendants 1 and 2 were not impleded as party. Therefore, the suit is liable to be rejected. Hence, the deceased first respondent viz. first plaintiff was constrained to file petition for seeking amendment. The deceased petitioner viz. the third defendant is the class I legal heir and as such the relief of specific performance is maintainable as against the third defendant. Therefore, the Court below rightly allowed the petition and also accordingly the amendment was carried out in the plaint. In fact, after amendment the trial commenced and the plaintiffs so far examined PW-1 to PW-5. The suit is posted for cross-examination of PW-5 on 07.12.2022. 5.1. Therefore, the Court below rightly allowed the petition and also accordingly the amendment was carried out in the plaint. In fact, after amendment the trial commenced and the plaintiffs so far examined PW-1 to PW-5. The suit is posted for cross-examination of PW-5 on 07.12.2022. 5.1. He further submitted that the amendment petition was filed even before commencement of trial. Even after commencement of trial, the plaint can be amended by way of amendment petition under the Code of Civil Procedure from 01.07.2002. Though the deceased was impleded as formal party in the suit, the plaintiffs categorically averred that the deceased petitioner viz. the third defendant was attempted to get some kind of deeds to be executed by the defendants 1 and 2. Therefore, the deceased petitioner was also added as necessary party to know things and to get binding decision upon him. Subsequently, the deceased petitioner become class I legal heir of the deceased defendants 1 and 2. Now the petitioners are taking technical stand that the amendment cannot be permitted after long years. It is permissible under law since, the procedural defects and irregularities which are curable should be allowed to defeat substantive rights or to cause injustice. The procedure should never be made a tool to deny justice of perpetuate injustice by any oppressive or punitive use. 5.2. In support of his contention he relied upon the judgment reported in Varun Pahwa vs. Renu Chaudhary, (2019) 15 SCC 628 in which the Hon'ble Supreme Court of India held that amendment in the pleading cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleading is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. 5.3. He further submitted that in fact, the plaintiffs already filed an application in I.A. No. 1376 of 2001 under Order 22 Rule 4 of C.P.C. to implead the second respondent herein as legal representative of the deceased second defendant and the same was allowed and he was impleaded as fourth defendant in the suit. 5.3. He further submitted that in fact, the plaintiffs already filed an application in I.A. No. 1376 of 2001 under Order 22 Rule 4 of C.P.C. to implead the second respondent herein as legal representative of the deceased second defendant and the same was allowed and he was impleaded as fourth defendant in the suit. Though the provision wrongly mentioned to substitute the correct person as plaintiff/defendant, the Court can order that the name of any of the party in the suit as contemplated under Order 1 Rule 10 of C.P.C. 5.4. In support of his contention, the learned counsel appearing for the respondents relied upon the judgment reported in Pankajbhari Rameshbhai vs. Jethabhai Kalabhai and Others, (2017) 9 SCC 700 which held as follows: “16. In the matter on hand, though the trial court had rightly dismissed the application under Order 22 Rule 4 of the Code as not maintainable at an earlier point of time, in our considered opinion, it needs to be mentioned that the trial Court at that point of time itself could have treated the said application filed under Order 22 Rule 4 of the Code as one filed under Order 1 Rule 10 of the CPC, in order to do justice between the parties. Merely because of the non-mentioning of the correct provision as Order 1 Rule 10 of the Code at the initial stage by the advocate for the plaintiff, the parties should not be made to suffer. It is by now well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice. Ultimately, the Courts are meant to do justice and not to decide the applications based on technicalities. The provision under Order 1 Rule 10 CPC speaks about judicial discretion of the Court to strike out or add parties at any stage of the suit. It can strike out any party who is improperly joined, it can add any one as a plaintiff or defendant if it finds that such person is a necessary or proper party. The Court under Order 1 Rule 10(2) of the Code will of course act according to reason and fair play and not according to whims and caprice. 17. It can strike out any party who is improperly joined, it can add any one as a plaintiff or defendant if it finds that such person is a necessary or proper party. The Court under Order 1 Rule 10(2) of the Code will of course act according to reason and fair play and not according to whims and caprice. 17. The expression “to settle all questions involved” used in Order 1 Rule 10(2) of the Code is susceptive to a liberal and wide interpretation, so as to adjudicate all the questions pertaining to the subject matter thereof. The Parliament in its wisdom while framing this rule must be held to have thought that all material questions common to the parties to the suit and to the third parties should be tried once for all. The Court is clothed with the power to secure the aforesaid result with judicious discretion to add parties, including third parties. There cannot be any dispute that the party impleaded must have a direct interest in the subject matter of litigation. In a suit seeking cancellation of sale deed, as mentioned supra, a person who has purchased the property and whose rights are likely to be affected pursuant to the judgment in the suit is a necessary party and he has to be added. If such purchaser has expired, his legal representatives are necessary parties.” Therefore, the Court below rightly allowed the petition to amend the plaint and commenced the trial. So far, the plaintiffs had examined PW-1 to PW-5 and the suit is posted for cross-examination of PW-5 on 07.12.2022. Hence, he prayed for dismissal of both the Civil Revision Petitions 6. Heard Mr. P. Valliappan, learned counsel appearing for the petitioners and Mr. N. Manokaran, learned counsel appearing for the respondents 3 to 6 in both C.R.P. 7. The first deceased petitioner is shown as third defendant in the suit filed by the first deceased respondent and another for specific performance. According to the respondents, they entered into an agreement for sale with the defendants 1 and 2, to purchase the subject property for the total sale consideration of Rs. 90,000/- in which, the defendants 1 and 2 received a sum of Rs. 80,000/-. Thereafter, they failed to execute any sale deed as such the respondents filed suit for specific performance. 8. 90,000/- in which, the defendants 1 and 2 received a sum of Rs. 80,000/-. Thereafter, they failed to execute any sale deed as such the respondents filed suit for specific performance. 8. The third defendant was added as party to know the transactions between the plaintiffs and the defendants 1 and 2 and to get binding decision upon him. Though the third defendant was added as formal party, the plaintiffs averred that he attempted to get some kind of deeds to be executed by the defendants 1 and 2. Therefore, he was also added as party to know things and to get a binding decision upon him. However, no specific relief was sought for as against the third defendant, since defendants 1 and 2 only executed the agreement for sale in favour of the plaintiffs. 9. While pending the suit, the defendants 1 and 2 died. The first defendant is the mother and the second defendant is her minor daughter. The third defendant is none other than own brother of the first defendant's husband. Admittedly, no other legal heirs except the third defendant. Subsequently, the plaintiffs filed petition to implead the second respondent as legal representatives of the deceased defendants 1 and 2 in I.A. No. 1376 of 2001 under Order 22 Rule 4 of C.P.C. and same was allowed and he was impleaded as fourth defendant and legal representative of the deceased defendants 1 and 2, who is none other than own brother of the first defendant. 10. Thereafter, the plaintiffs filed application in I.A. No. 671 of 2012 seeking amendment in the plaint as follows: “(i) In the plaint, after the Para VII-A, add the following fresh Para “VII-B” as follows: “VII-B. In the Additional Written Statement of the 3rd defendant which was filed on 30.07.2012, he has stated in Para 14 as follows: Therefore, the 1st plaintiff submits that as per class I legal heir under Section 8 of the Hindu Succession Act is the 3rd defendant only and therefore the relief is absolutely necessary against the 3rd defendant also and therefore the 1st plaintiff is seeking the relief against both the defendants 3 and 4. 2. In the prayer para of the plaint, wherever the word “4th defendant” occurs the same shall be substituted by the figures and the words “Defendants 3 and 4.” 3. 2. In the prayer para of the plaint, wherever the word “4th defendant” occurs the same shall be substituted by the figures and the words “Defendants 3 and 4.” 3. In the prayer para of the plaint, the word, “his” is to be substitute by the word “their.” The said application was allowed and the trial Court commenced the trial. So far, the plaintiffs examined PW-1 to PW-5 and the case is posted for cross-examination of PW-5 by the defendants. 11. The learned counsel appearing for the petitioners vehemently contended that the suit itself was already dismissed as abated as against the defendants 1 and 2 as such without restoring the suit, it cannot be continued as against the formal party viz. the third defendant. Further the plaintiffs sought for amendment after the period of 21 years from the date of the suit. 12. On a perusal of plaint revealed that though third defendant was added as formal party, there is specific averment made as against the third defendant that he had attempted to get some kind of deeds to be executed by the defendants 1 and 2. That apart, at the time of filing the suit, defendants 1 and 2 were very much alive. While being so, the first defendant died and her only legal representative viz. the second defendant was very much alive. 13. Only after demise of the second defendant, the plaintiffs were constrained to file petition to implead the legal representative of the second defendant in I.A. No. 1376 of 2001 and the same was allowed. Thereafter, the present application was filed to amend the plaint seeking prayer as against both the defendants 3 and 4, since the limitation in question and whether the third defendant is the legal heir of the deceased defendants 1 and 2 or not, can be decided only after the trial and the plaintiffs ought to have been proved the same by let in evidence. Hence the judgments cited by the learned counsel appearing for the petitioners are not helpful to the case on hand. 14. That apart, the third defendant viz. the deceased petitioner filed additional written statement stating that the fourth defendant viz. the second respondent herein is unnecessary party as he is neither class I legal heir, nor class II legal heir of the deceased second defendant. 14. That apart, the third defendant viz. the deceased petitioner filed additional written statement stating that the fourth defendant viz. the second respondent herein is unnecessary party as he is neither class I legal heir, nor class II legal heir of the deceased second defendant. Therefore, the plaintiffs were constrained to file petitioner under Order 6 Rule 17 of C.P.C. stating that third defendant viz. the deceased petitioner is only the class I legal heir of the deceased defendants 1 and 2 and sought for amendment to that effect. Further, the amendment sought for by the plaintiffs would not cause any prejudice to the defendants 3 and 4. Hence the Court below rightly allowed the petition and this Court finds no infirmity or illegality in the order passed by the Courts below. 15. Accordingly, the order dated 30.11.2012 passed in I.A. No. 671 of 2012 in O.S. No. 347 of 2004, on the file of the learned Principal District Munsif, Thiruchengode, is hereby confirmed and the Civil Revision Petition in C.R.P. No. 119 of 2013 stands dismissed. Consequently, connected miscellaneous petition is closed. 16. The deceased first petitioner also filed an application in I.A. No. 26 of 2015 to stay all further proceedings in O.S. No. 347 of 2004, till disposal of the C.R.P. No. 119 of 2013 and the same was dismissed by order dated 18.02.2015. Aggrieved by the same, the petitioners filed the Civil Revision Petition in C.R.P. No. 1842 of 2015. 17. In view of the order passed in C.R.P. No. 119 of 2013, the Civil Revision Petition in C.R.P. No. 1842 of 2015 is also dismissed. Consequently, connected miscellaneous petition is closed. The trial Court is directed to dispose the suit within a period of three months from the date of receipt of a copy of this Order.