Allowed

S.Varatharaja Boopathi v. Anantha Radhabai

Madras HC10 Apr 2014CRP(MD)/1115/2013

Case brief

AI extract

What is this about?

The Madras High Court allowed a civil revision petition against a District Judge's order permitting plaint amendment to include properties previously omitted. The court held the lower court erred in ignoring statutory bars under Order 2 Rule 2 CPC and limitation laws. The impugned order was set aside and the amendment application dismissed.

What did the court decide?

Impugned order dated 15.04.2013 allowing amendment permitted in I.A.No.19 of 2012 is set aside and the application is dismissed.

S.Varatharaja Boopathi Vs Anantha Radhabai — Succession and Inheritance | Madras HC (2014)

¶1

¶2

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.04.2014

¶3

CORAM:

¶4

THE HONOURABLE MR.JUSTICE T.MATHIVANAN

¶5

C.R.P.(MD).No. 1115 of 2013 (PD) And

¶6

M.P.No. 1 of 2013

¶7

S.Varatharaja Boopathi : Petitioner/1^st Respondent/1^st Defendant

¶8

Vs.

¶9

Anantha Radhabai

¶10

S.Jegatheesan

¶11

Dr.S.Maheswaran

¶12

S.Swarna Pandian

¶13

S.Soundara Rajan : Respondents/Respondent Nos. 2 to 5/Defendants No. 2 to 5

¶14

PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of India as against the order dated 15.04.2013 made in I.A.No. 19 of 2012 in O.S.No. 142 of 2010 on the file of the District Judge, Kanyakumari at Nagercoil.

¶15

O R D E R

¶16

This Memorandum of Civil Revision is directed against the fair and decreetal order, dated 15.04.2013 and made in I.A.No. 19 of 2012 in O.S.No. 142 of 2010 on the file of the learned District Judge, Kanyakumari at Nagercoil.

¶17

The revision petitioner herein is the first defendant in the suit in O.S.No. 142 of 2010; whereas the first respondent is the plaintiff and the remaining respondents are the defendants 2 to 5 in the suit.

¶18

https://hcservices.ecourts.gov.in/hcservices/ 3. As it appears from the records, the first respondent herein has filed the suit in O.S.No. 142 of 2010 as against the

¶19

¶20

revision petitioner and the remaining respondents seeking the relief of a declaratory decree to declare her title and possession over the plaint schedule property and also to declare the preliminary decree as well as the final decree passed in O.S.No. 69 of 1985 as invalid and not binding upon her and also for permanent injunction.

¶21

The revision petitioner being the first defendant alone has contested the suit by filing his written statement. It also appears that the respondents 2 to 5 being the defendants 2 to 5 in the suit have not contested the suit. During the pendency of the suit, the first respondent/plaintiff has filed an application in I.A.No. 19 of 2012 under Order 6 Rule 17 of the Code of Civil Procedure to amend the plaint for the purpose of inclusion of “B” Schedule property and also claiming 1/6^th share in “B” Schedule property”. This Petition was vehemently resisted by the revision petitioner/the first defendant.

¶22

After hearing both sides, the learned Principal District Judge has proceeded to allow that application on 15.04.2013 permitting the first respondent/plaintiff to amend her plaint. Having been aggrieved by the impugned order, the revision petitioner/the first defendant stands before this Court with this revision.

¶23

Heard Mr.T.Lajapathi Roy, learned counsel appearing for the petitioner; Mr.J.Barathan, learned counsel appearing for the first respondent and Mr.M.P.Senthil, learned counsel appearing for the fourth respondent.

¶24

The first respondent/plaintiff has claimed that she is the absolute owner of the suit properties (two items) described in the plaint which according to her obtained through a settlement deed executed in her favour by her father. Besides this, other properties were also there and in that properties, she being one of the coparcenors / co-owner is having 1/6^th share and therefore, she happened to file the above said application before the trial Court to include those properties as “B” scheduled property and also claiming 1/6^th share in the properties.

¶25

The contention of the revision petitioner/first respondent is on two fold:

¶26

(1) The petition itself is not maintainable as her claim is barred by the law of limitation;

¶27

(2) Secondly in the final decree proceedings in I.A.No. 98 of 1994 in O.S.No. 69 of 1985, the first respondent/plaintiff was the seventh respondent and as such she knew the entire proceedings and since she had participated in the final decree proceedings after https://hcservices.ecourts.gov.in/hcservices/ filing her counter statement, she cannot re-agitate the same issue under the guise of filing the suit as her claim is squarely barred under Order 2 Rule 2 of the Code of Civil Procedure.

¶28

¶29

But the contention raised on behalf of the revision petitioner, who is the first defendant in the suit in O.S.No. 142 of 2010, was not accepted and considered by the learned trial Judge and ultimately had proceeded to allow that application permitting the first respondent/plaintiff to amend the plaint.

¶30

This Court has carefully considered the submissions made on behalf of both sides and also perused the grounds of revision.

¶31

In the present suit, the first respondent/plaintiff as aforestated in the opening paragraph has sought the relief of declaration to declare her title and possession in respect of the suit properties specified in the schedule which consists of two items and apart from this, she also wanted to add “B” schedule property by way of amendment in the present suit.

¶32

From the records, it is crystallized that in the final decree proceedings in the suit in O.S.No. 69 of 1985 ie., in I.A.No. 98 of 1994, the first respondent/plaintiff was impleaded as seventh respondent and she had also participated and filed her counter statement and ultimately, she remained ex-parte. Having participated in the final decree proceedings and failed to substantiate her case effectively in that suit, it is not fair on her part to file the present application to include that property which was part and parcel of the suit in O.S.No. 69 of 1985 as the “B” schedule property in the present suit claiming 1/6^th share and besides this, her claim is squarely barred by the law of limitation.

¶33

Secondly at the time of filing the present suit in O.S.No. 142 of 2010, she could have included the properties which is now sought to be included in the present suit as “B” Schedule, but she has miserably failed to include the property at the time of filing the suit. Thirdly, the relief which is now sought to be included in the present suit was very well available at the time of filing the present suit ie., as early as in the year 2008. But on account of latches, and acquiesce on her part, she has failed to exercise her right and on account of this reason, now the application under Order 6 Rule 17 as well as her claim are suffered by the provisions of Order 2 Rule 2 of the Code of Civil Procedure. Despite the strenuous contest made on behalf of the revision petitioner/first defendant in the suit, the learned trial Judge has failed to consider the contention made on behalf of the respondent/first defendant and apart from this, more than three decisions cited to support the case of the revision petitioner but without considering the supporting case laws, the learned trial Judge has simply stated that those decisions are not made https://hcservices.ecourts.gov.in/hcservices/ applicable to the present case on hand. The conclusion of the learned trial Judge seems to be erroneous, perverse in nature and therefore liable to be set aside.

¶34

¶35

In the result, the Civil Revision Petition is allowed and the impugned order dated 15.04.2014 is set aside and the petition in I.A.No. 19 of 2012 is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.

¶36

Sd/-

¶37

Sub Assistant Registrar

¶38

vsg To

¶39

The District Judge,Kanyakumari @ Nagercoil.

¶40

COPY TO:

¶41

THE SECTION OFFICER,

¶42

VR SECTION, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.

¶43

+1cc to MR.M.P.SENTHIL, ADVOCATE IN SR NO.22267

¶44

+1cc to MR. T.LAJAPATHI ROY, ADVOCATE IN SR NO.22907

¶45

And M.P.No. 1 of 2013 10.04.2014

¶46

RG.27/05/2015 4P.5C.

¶47

https://hcservices.ecourts.gov.in/hcservices/

S.Varatharaja Boopathi v. Anantha Radhabai

Case brief

What is this about?

What did the court decide?

S.Varatharaja Boopathi v. Anantha Radhabai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

R.Prakash, Vs Sri Lakshmi Narashima Swamy

A.T.Jain Sharely Vs R.Evalin Latha

C.Selvakumar, Vs Flowrence Selvi

G. Savarimuthu Vs Sudarali

H.a.Mohamed Ali, Vs S.Selvaraj

Jeinulabudeen, Vs Sheik Abdul Rahman