Partly allowed

Kunjarammal v. Kandasamy

Madras HC23 Oct 2017CRP/313/2017

Case brief

AI extract

What is this about?

Revision petitions challenging dismissal of applications to amend a partition suit's plaint and implead a respondent. The High Court allowed amendments regarding bore wells and service connections but dismissed the inclusion of a new property, directing costs and disposal within three months.

What did the court decide?

Interlocutory Application No.396 of 2016 allowed in part (reliefs 1 and 2); C.R.P. No.313 partly allowed with costs; C.R.P. No.314 allowed; C.R.P. No.315 dismissed.

Kunjarammal Vs Kandasamy — Partition | Madras HC (2017)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

Dated : 23.10.2017

¶4

Coram

¶5

THE HON'BLE MR.JUSTICE D. KRISHNAKUMAR

¶6

C.R.P.(PD).Nos.313,314 and 315 of 2017
and
CMP.No.1434 of 2017
1. Kunjarammal
2. Dhanabakkiyam
3. Muthugounder ...Petitioners in all the C.R.P's
Vs.
1. Kandasamy
2. Palaniammal

¶7

Easwari

¶8

Velusamy @ Palanivel

¶9

Saraswathi

¶10

Branch Manager State Bank of India, Kesarimangalam Village and Post, Chitdar ....Respondents in all the C.R.P.'s 7. Meena ....Respondent in C.R.P.No.315 of 2017

¶11

http://www.judis.nic.in

¶12

¶13

PRAYER in C.R.P.(PD)Nos.313 to 315 of 2017: Civil Revision Petitions filed under Article 227 of the Constitution of India, praying to set aside the fair and decreetal orders of the Subordinate Judge's Court at Bhavani, dated 07.12.2016 in I.A.Nos.396, 397 and 398 of 2016 in O.S.No.16 of 2009, respectively.

¶14

For Petitioners : Mr.P.Valliappan
For Respondents : Mr.V.Vijayakumar for RR1 to 5
No Appearance for R6
*****
C O M M O N O R D E R
These Civil Revision Petitions have been filed to set aside the fair

¶15

and decreetal orders of the Subordinate Judge's Court at Bhavani, dated 07.12.2016 in I.A.Nos.396, 397 and 398 of 2016 in O.S.No.16 of 2009, respectively.

¶16

The learned counsel for the petitioners submitted that, the

¶17

petitioners have filed a suit in O.S.No.16 of 2009, before the Subordinate Court, Bhavani, for partition claiming 72/100^th share, for separate possession and for permanent injunction. After completion of the trial, the suit is posted

¶18

for arguments. Pending suit, the petitioners filed I.A.Nos.396,397 & 398 of

¶19

2016, seeking to amend the plaint, by including the bore well, service connection and to include the new property in the said suit, to reopen the suit,

¶20

http://www.judis.nic.in

¶21

¶22

and to implead the proposed respondent as a party in the suit. The said Interlocutory Applications filed by the petitioners were dismissed by the trial Court on 07.12.2016. Hence, the present Civil Revision Petitions are filed before this Court.

¶23

According to the learned counsel for the petitioners, the aforesaid applications have been filed by the petitioners, after evidence on both sides were concluded and posted for arguments. The suit has been filed by the petitioners for partition and separate possession and only in order to avoid multiplicity of proceedings, the petitioners filed the Interlocutory Applications in I.A.Nos.396 to 398 of 2016 to amend the plaint by including the additional property, which was purchased in the name of the proposed respondent/wife of the fourth defendant. No prejudice would be caused to the respondents, if the said application for amendment is allowed. The learned counsel for the petitioners relied upon the judgment in A.A.Ganga and another vs. A.R.Usha and others [2010(4) CTC 331] and Puttamma and others vs. Munusamy and 20 others [2008(5) CTC 548], wherein, this Court has held that allowing the amendment application, lies on the discretion of the Court and the litigant should not be refused a fair and just relief merely because of some negligence, mistake or inadvertence or even infraction of rules of procedure. According to the learned counsel for the petitioners, in the present case, the property has

¶24

http://www.judis.nic.in

¶25

¶26

been purchased by the proposed respondent from the undivided property of the petitioners' family. Therefore, the orders passed by the trial Court, dismissing the Interlocutory Applications have to be set aside.

¶27

Per contra, the learned counsel for the respondents would submit that the petitioners have filed the suit in O.S.No.16 of 2009 for partition and separate possession. The petitioners have not filed the applications within a reasonable time. The applications in I.A.Nos.396, 397 & 398 of 2016 have been filed after the evidence on both sides were concluded and the suit was posted for arguments. The intention of the petitioners is only to drag on the proceedings. By considering the case of the parties, the Court below had rightly dismissed the applications and hence the same do not warrant interference by this Court.

¶28

Heard the rival submissions and perused the material on records.

¶29

It is an admitted fact that the petitioners/plaintiffs filed the suit in O.S.No.16 of 2009 for partition and separate possession. The trail Court framed the issues and the trial was commenced in the said suit. The evidence of both sides were concluded and when the case was posted for arguments, the present applications in I.A.Nos.396, 397 and 398 of 2016 have been filed to

¶30

http://www.judis.nic.in

¶31

¶32

amend the plaint, to reopen the suit and to implead the proposed respondent

¶33

as a party in the said suit.

¶34

I.A.No.396 of 2016 has been filed Order 6, Rule 17 to amend the

¶35

plaint, as follows:

¶36

jhth m/t/vz;/16- 2009d; tHf;Fiuiaj; jpUj;jk;

¶37

bra;a ntz;oa tptuk;

¶38

1. jhth tHf;Fiu brhj;Jtpguj;jpy; 14tJ gj;jpapd; 7tJ thpapy; "g[/V/1/28 brd;l; ,J g{uht[k;" vd;w thh;j;ijfSf;Fg; gpwF. "mjpYs;s MH;Jisf; fpzW xd;Wk;. nkw;go MH;Jisf; fpzw;wpYs;s kpd; ,izg;g[ vz;/909k;. nkw;go kpd; ,izg;g[f;Fz;lhd midj;J kpd; cgfuz';fs; rfpjKk;" vd;gijr; nrh;f;ft[k;

¶39

1. jhth tHf;Fiu brhj;J tpguj;jpd; filrpg;gj;jpapy;. "g[/V/1/01\ brd;l; g{kp g{uht[k;" vd;w thh;j;ijfSf;Fg; gpwF. "MjpYs;s MH;Jisf; fpzW xd;Wk;. mjw;Fg; bgwg;nghFk; kpd; ,izg;g[ rfpjk;" vd;gijr; nrh;f;ft[k;/

¶40

1. jhth tHf;Fiu brhj;Jtpguj;jpy; filrp gj;jpf;Fg; gpwF. "<nuhL gjptfk;. mk;khg;ngl;il Jizg;gjptfk;. <nuhL khtl;lk;. gthdp tl;lk;. Fhlg;gey;Y}h; fpuhkk; hP/r/vz;/43-1 (g/f/r/108?3) g[/bcw/0/25/5 Vh;!;f;F (g[/V/0/63 brz;L) jP/U/0/70 ,J g{uht[k;/

¶41

gpd;Dk; nkw;go fpuhkk; hP/r/vz;/48-1 (g/f/r/ 108?1) g[/bcw/0/26/5 Vh;!; (g[/V/0/65 brz;L) jP/U/0/73 ,J g{uht[k;/

¶42

gpd;Dk; nkw;go fpuhkk; hP/r/vz;/48-4 (g/f/r/ 108?1) g[/bcw/0/12/0 Vh;!; (g[/V/0/30 brz;L) jP/U/0/33 ,J

¶43

http://www.judis.nic.in

¶44

¶45

g{uht[k;/

¶46

It is stated by the petitioners, as far as item no.3 of the aforesaid property is concerned, the said property has been purchased by the fourth defendant's wife/proposed respondent on 24.11.2011. It is an admitted fact that the petitioners have not chosen to file the applications before the commencement of the trial. Therefore, at this stage, if the application for amendment is allowed, for including the new property in the said suit, there will be a change in the nature and character of the suit. In the light of the decision of this Court, the petitioners have to satisfy two condition for allowing

¶47

the applications, viz.,

¶48

''Not doing injustice to the other side and doing the necessary for the

¶49

purpose of resolving the controversy between the parties.''

¶50

In the present case, in I.A.No.396 of 2016, insofar as the third item of

¶51

property is concerned, there is a new inclusion and new pleadings. Therefore,

¶52

the said item cannot be included, but, however so far as the item nos. 1 and 2 are concerned, the said properties have already been included in the schedule of property. The first and second reliefs prayed for in the application is to include the bore well and the service connection in the suit property. No prejudice would be caused to the respondents. Hence in the light of the afore

¶53

http://www.judis.nic.in

¶54

¶55

cited decisions of this Court in 2008(5) CTC 548 and of the Hon'ble Supreme Court in (2015) 4 Supreme Court Cases 182 the I.A.No.396 of 2016 is allowed, insofar as relief no.1 and 2 are concerned and dismissed insofar as relief no. 3, in the said application.

¶56

In view of the above, the C.R.P.No.313 of 2017 is partly allowed, and

¶57

the petitioners are directed by this Court to pay a cost of Rs.2,500/- as compensation, to the respondents, within a period of two weeks from the date of receipt of a copy of this order. Considering the request of the learned counsel for both the parties, the trial Court is directed to dispose of the suit within a period of 3 months from the date of receipt of a copy of this order. It is open to the parties concerned to workout their remedies before the

¶58

appropriate forum, if so advised.

¶59

As the C.R.P.No.313 of 2017 has been partly allowed, the

¶60

Interlocutory Application in I.A.No.398 of 2016 to reopen the suit, is also

¶61

allowed. Hence, the C.R.P.No.314 of 2017 is allowed.

¶62

Insofar as the C.R.P.No.315 of 2017 is concerned, filed challenging

¶63

http://www.judis.nic.in

¶64

¶65

dismissal of the implead application filed in I.A.No.398 of 2016, the same is

¶66

dismissed.

¶67

The Civil Revision Petitions are ordered, accordingly. No costs.

¶68

Consequently, connected Civil Miscellaneous Petition is closed.

¶69

23.10.2017
Index : Yes/no
Internet : Yes/No
bri

¶70

D. KRISHNAKUMAR, J.

¶71

http://www.judis.nic.in

¶72

¶73

bri

¶74

C.R.P.(PD).No.313,314 and 315 of 2017
and CMP.No.1434 of 2017

¶75

23.10.2017

¶76

http://www.judis.nic.in

Kunjarammal v. Kandasamy

Case brief

What is this about?

What did the court decide?

Kunjarammal v. Kandasamy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

V.M.Sankaran Vs Siva Kanchi Udasi Mutt@

Gokula Rao Vs Prema Kumari

R.M.S.Vasantha Vs Porkalaiselvi

M. Sundari Vs K. Ashok Kumar

Vijayabalan Vs Murugaiyan

R.Senthil Vs Nallammal