Allowed

G.Duraisayee v. Devi Sundara Raju

Madras HC6 Sept 2018A/5737/2018

Case brief

AI extract

What is this about?

This order allows an amendment in a written statement in a partition suit to replace the term 'foster son' with 'adopted son'. The court found the error inadvertent and granted the application subject to costs of Rs. 20,000 payable to respondent counsel.

What did the court decide?

Amendment of written statement to substitute 'foster son' with 'adopted son' allowed subject to costs of Rs. 20,000.

G.Duraisayee Vs Devi Sundara Raju — Property and Title | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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(ORDINARY ORIGINAL CIVIL JURISDICTION) THURSDAY, THE 06TH DAY OF SEPTEMBER 2018

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THE HON'BLE DR. JUSTICE ANITA SUMANTH

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A. No.5737 of 2018

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in C.S. No.149 of 2011

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Mrs.Devi Sundara Raju, W/o.A.Sundara Raju, Old No.30/1, New No.27, South Gangaiamman Koil 1st Street, Choolaimedu, Chennai-600 094. ... Plaintiff

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-Versus-

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B.Gajapathi Raju (Deceased)(#) 2. G.Jayaraman, S/o.Gajapathi Raju, No.22, Srinivasa Gounder Street, Sellaperumal Pet, Pondicherry-605 008. 3. Mr.G.Babu Raj (Deceased)(*) S/o.B.Gajapathi Raju, 4. Mrs.P.Revathi, W/o.Late G.Pasupathy, 3 & 4 are at Old No.22, New No.14, Bharathi Road, 1st Street, Perambur, Chennai-600 011. 5. Mr.G.Duraisayee, S/o.Mr.C.Govindaraju, No.19, Devaram Street, Keezhaperumbakkam, Villupuram.

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Selvi.Sekharipuram Lakshminarayanan Priya, D/o.S.R.Lakshminarayanan,

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Mrs.Rajalakshmi Lakshminarayanan, W/o.S.R.Lakshminarayanan, 6 & 7 are at New No.29 & 30,

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https://hcservices.ecourts.gov.in/hcservices/ Old No.116, 5th Street, Padmanabha Nagar, Adayar, Chennai-600 020.

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Sharmila Leena Martin, W/o.A.T.Martin, 9. A.T.Martin, S/o.Ambookanthoman, 8 & 9 are at No.35/10, B.B.Road, Third Lane, Srinivasa Flats, Vyasarpadi, Chennai-600 039. 10. Mayamurugan, S/o.Moka Mayan, No.2/27, Bharathi Road, 1st Cross Street, Raveena Akshaya Nivas, Perambur, Chennai-600 011. 11. Mr.G.Dilli Raj, S/o.R.Govindappa Naidu, No.17/16, Meenakshi Street, F3 1st Floor, Raju Villa, Perambur, Chennai-600 011. 12. Mr.P.M.Ramesh, S/o.P.R.Muralidharan, No.14, Bharathi Road, Second Street, Perambur, Chennai-600 011. 13. G.K.Saravanan, S/o.G.Krishnan, No.48, School Road, Perambur, Chennai-600 011.

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Rani, W/o.Baburaj,(*)

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Mr.Dilipkumar,() S/o.Baburaj, 16. Ms.B.Jayanthi,() D/o.Baburaj,

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Mrs.Radhabai,(*) W/o.Gajapathi Raju, 14 to 17 are at Old No.22, New No.14, Bharathi Road, I Street, Perambur, Chennai-11.

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(*)Defendants 14 to 17 are brought on record as legal heirs of the deceased

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https://hcservices.ecourts.gov.in/hcservices/ 3rd defendant (Baburaj) as per order dated 24.09.2012 in A. Nos.1412 to 1414 of 2012

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Mrs.Kamatchi,(#) W/o.Sridhar, SSP Mayuri, F2, 12/33, Sakthi Vinayagar Koil Street, Bhashyam Colony, Chennai-600 082.

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Mrs.Girija,(#) W/o.Late K.Dhandapani Raju, Reddiyarpalayam Village & Post, Via-Thanipadi-606 708, Thiruvannamalai-District. ... Defendants (#)Defendants 18 & 19 were brought on record as LR of deceased 1st defendant (Gajapathi Raju) as per order dated 22.08.2016 in A. Nos.6106 to 6108 of 2013 and Time extended as per order dated 18.07.2017 and 26.07.2017 in A. No.1914 of 2017 A. No.5737 of 2018:- G.Duraisayee, S/o.Mr.C.Govindaraju, No.19, Devaram Street, Keezhaperumbakkam, Villupuram. ... Applicant/5th Defendant -Versus1. Mrs.Devi Sundara Raju, W/o.A.Sundara Raju, Old No.30/1, New No.27, South Gangaiamman Koil 1st Street, Choolaimedu, Chennai-600 094. ... 1st Respondent / Plaintiff 2. B.Gajapathi Raju (Deceased)(#) 3. G.Jayaraman, S/o.Gajapathi Raju, No.22, Srinivasa Gounder Street, Sellaperumal Pet, Pondicherry-605 008. 4. Mr.G.Babu Raj (Deceased)(*) S/o.B.Gajapathi Raju, 5. Mrs.P.Revathi, W/o.Late G.Pasupathy, 4 & 5 are at Old No.22, New No.14, https://hcservices.ecourts.gov.in/hcservices/ Bharathi Road, 1st Street, Perambur, Chennai-600 011.

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Selvi.Sekharipuram Lakshminarayanan Priya, D/o.S.R.Lakshminarayanan, 7. Mrs.Rajalakshmi Lakshminarayanan, W/o.S.R.Lakshminarayanan, 6 & 7 are at New No.29 & 30, Old No.116, 5th Street, Padmanabha Nagar, Adayar, Chennai-600 020. 8. Sharmila Leena Martin, W/o.A.T.Martin, 9. A.T.Martin, S/o.Ambookanthoman, 8 & 9 are at No.35/10, B.B.Road, Third Lane, Srinivasa Flats, Vyasarpadi, Chennai-600 039. 10. Mayamurugan, S/o.Moka Mayan, No.2/27, Bharathi Road, 1st Cross Street, Raveena Akshaya Nivas, Perambur, Chennai-600 011. 11. Mr.G.Dilli Raj, S/o.R.Govindappa Naidu, No.17/16, Meenakshi Street, F3 1st Floor, Raju Villa, Perambur, Chennai-600 011. 12. Mr.P.M.Ramesh, S/o.P.R.Muralidharan, No.14, Bharathi Road, Second Street, Perambur, Chennai-600 011. 13. G.K.Saravanan, S/o.G.Krishnan, No.48, School Road, Perambur, Chennai-600 011. 14. Rani, W/o.Baburaj, 15. Mr.Dilipkumar, S/o.Baburaj,

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https://hcservices.ecourts.gov.in/hcservices/ 16. Ms.B.Jayanthi, D/o.Baburaj,

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Mrs.Radhabai, W/o.Gajapathi Raju, 14 to 17 are at Old No.22, New No.14, Bharathi Road,

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I Street, Perambur, Chennai-11. Defendants 14 to 17 are brought on record as legal heirs of the deceased 3rd defendant (Baburaj) as per order dated 24.09.2012 in A. Nos.1412 to 1414 of 2012

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Mrs.Kamatchi, W/o.Sridhar, SSP Mayuri, F2, 12/33, Sakthi Vinayagar Koil Street, Bhashyam Colony, Chennai-600 082.

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Mrs.Girija, W/o.Late K.Dhandapani Raju, Reddiyarpalayam Village & Post, Via-Thanipadi-606 708, Thiruvannamalai-District. ... Respondents/Defendants

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Application praying that this Hon'ble Court be pleased to permit the 5th defendant to amend wherever foster son as to adopted son in the 5th defendant's written statement filed in the suit in C.S. No.149 of 2011.

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This application coming on this day before this court for hearing the court made the following order:-

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The Suit has been filed seeking partition of the suit

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property situated at Plot No.23, Old No.22, New No.14, Bharathi Road, First Street, Perambur, Chennai – 600 011 under occupation by the 1^st , 3^rd , and 4^th defendants and various other reliefs in connection thereto.

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

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The present application has been filed by the 5^th

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defendant in the suit. The short and simple prayer sought is the substitution of the phrase 'foster son' whereever it

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appears in the written statement filed by the applicant/D5 with the phrase 'adopted son'. On the face of it, it appears simple enough. The applicant states that he has, in fact, used the phrase 'adopted son' in the application

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in some places but has inadvertantly and by way of a typographical error used the phrase 'foster son' in one place which fact he noted only during the cross examination of P.W.1 by D1.

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The application is strenuously objected to. A

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counter has been filed by the third respondent/D2 – G.Jayaraman, raising various objections on merits and

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stating that the 5^th defendant, i.e., the applicant is not the son of C.Govindaraju. Various other averments have

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been raised on merits, which I do not intend to advert to at this stage seeing as the matter is pending trial.

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Suffice it to say that I leave all the contentions

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of both parties open to be addressed in the course of further proceedings.

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

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At paragraph 10 in the counter affidavit dated

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30.07.2018, the third respondent states that his counsel had cross examined P.W.1 on 29.06.2018 making reference to the written statement of D5 wherein mention was made by D5

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to himself as 'foster son' and not 'adopted son'. According to the third respondent/D2, D5 was not even in Court on the said date and therefore, the statement in the application to the effect that D5 was taken aback when the error was pointed out in Court was incorrect. He also specifically alleges collusion between the plaintiff/first respondent and the applicant in so far as no counter has been filed by the plaintiff/first respondent to the present application.

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The third respondent relies upon the provisions of

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Order VI Rule 17 of the C.P.C. as per which an amendment is not liable to be allowed after commencement of the trial.

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Heard Mr.P.Venugopal, learned counsel appearing for

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the applicant, Mr.D.Rajendran, learned counsel appearing for D1 to D4 and D13 and Mr.A.M.Loganathan, learned counsel appearing for D17 to D19.

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The provisions of Order VI Rule 17 permit a party

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to amend or alter the pleading post commencement of trial

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upon the party establishing that he had exercised due https://hcservices.ecourts.gov.in/hcservices/ diligence at all times prior to commencement of the trial.

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In the present case, in the written statement filed by D5

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at paragraph 5, D5/applicant herein states that he is the

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the 'adopted son' of Mrs.G.Padmavathi Ammal and Mr.G.Govindaraju. At paragraph 5 he reiterates the same stating that he performed the last rites upon the demise of Mrs.G.Padmavathi Ammal referring to her as adopted parents

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and himself as adopted son. It is only in paragraph 2 that

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he refers to himself as the only legal heir and 'foster son' of Mrs.G.Padmavathi Ammal. Thus, the contention that the use of the word 'foster' in the place of 'adopted' has

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been inadvertant is not wholly without merit.

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The issues framed in the suit include one to determine whether the 5^th defendant is the adopted son of C.Govindaraju and G.Padmavathy Ammal. The status of D5/applicant is thus to be determined in the course of trial after letting in of evidence in this respect.

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In the aforesaid circumstances I am inclined to grant the prayer sought. The amendment application is allowed subject to costs of Rs.25,000/- payable to the counsel for the respondents within a period of two (2)

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weeks from the date of receipt of a copy of this order.

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

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After pronouncing of the order today (06.09.2018), learned counsel for the applicant requested that the costs may be reduced, to which, learned counsel for the respondents consented.

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Accordingly, the costs is reduced from Rs.25,000/-
to Rs.20,000/-.
Sd/-A.S.M.J
06.09.2018
//Certified to be a true copy//
Dated this the day of 2018
JJ 11/10/18
COURT OFFICER
From 25.09.2008 the Registry is issuing certified copies of
the Order/Judgment Decree in this format.

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

G.Duraisayee v. Devi Sundara Raju

Case brief

What is this about?

What did the court decide?

G.Duraisayee v. Devi Sundara Raju

Case brief

What is this about?

What did the court decide?

What the court decided

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