Allowed

A/M Arunachaleswarar v. Muthuraman Chettiar

Madras HC4 Nov 2019CRP/29/2013

Case brief

AI extract

What is this about?

The Madras High Court allowed a Civil Revision Petition against an appellate court order dismissing an amendment application. The court held that the applicant's omission to mention the representative community capacity in the appeal title was a bona fide mistake warranting amendment under Order VI Rule 17 CPC rather than adding a party of Order I Rule 10.

What did the court decide?

The order of the Lower Appellate Court dismissing the application under Order VI Rule 17 CPC was set aside, and the application was allowed.

A/M Arunachaleswarar Vs Muthuraman Chettiar — Property and Title | Madras HC (2019)

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C.R.P.(NPD).No.29 of 2013

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 04.11.2019

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CORAM :

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THE HON'BLE MR. JUSTICE M.DURAISWAMY

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C.R.P.(NPD).No.29 of 2013 and
M.P.No.1 of 2013
1.A/M. Arunachalaeswarar Devasthanam,
Tiruvannamalai,
Rep. By its Exeuctive Officer/Joint Commissioner,
2. Ramachandra Upathiyaya
3. Muthukrishnan ... Petitioners
v.
1. Muthuraman Chettiar,
2. The District Collector,
Tiruvannamalai District,
Tiruvannamalai ... Respondents

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Civil Revision Petition filed under Section 115 of the Civil Procedure Code against the fair and decreetal order dated 15.11.2012 passed in I.A.No.100 of 2012 in A.S.No.62 of 2008 on the file of the Additional Subordinate Judge, Tiruvannamalai.

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C.R.P.(NPD).No.29 of 2013

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For Petitioner : Mr. P. Denesh Kumar

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For Respondents : Mr.R.Rajarajan – for R1

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No Appearance – for R2

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ORDER

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Challenging the fair and final order passed in I.A.No.100 of 2012 in A.S.No.62 of 2008 on the file of the Additional Subordinate Court, Tiruvannamalai, the defendants 2, 4 and 6 in O.S. No.133 of 1996 on the file of the Additional District Musnif Court, Tiruvannamalai, have filed the

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above Civil Revision Petition.

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2.1 The plaintiffs filed the suit in O.S. No.133 of 1996 for

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declaration and permanent injunction. The suit was originally filed by the

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1^st plaintiff, viz., one Panduranga Chettiar, representing Ulagamapuram Vellalan Chetti Community People and during the pendency of the suit, the

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1^st plaintiff had died and the plaintiffs 2 to 4 were impleaded in the place of 1^st plaintiff representing Ulagamapuram Vellalan Chetti Community People in the suit. After contest, the Trial Court, decreed the suit.

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C.R.P.(NPD).No.29 of 2013

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2.2 Aggrieved over the same, the defendants 2, 4 and 6 have

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filed the appeal in A.S.No.62 of 2008 on the file of the Additional Subordinate Judge, Tiruvannamalai.

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2.3 In the grounds of appeal, the appellants, inadvertently

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mentioned the 4^th plaintiff's name alone instead of mentioning that he was representing the Ulagamapuram Vellalan Chetti Community People.

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In the plaint cause title, 4^th plaintiff name has been mentioned as Muthuraman Chettiar, representing the Ulagamapuram Vellalan Chetti Community People. Whereas, in the grounds of appeal in A.S.No.62 of 2008, the appellants have mentioned only the name of the 4^th plaintiff, viz., Muthuraman Chettiar. Subsequently, when the appeal was taken up for hearing, the appellants took out an application in I.A.No100 of

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2012 under Order VI Rule 17 of CPC to amend the cause title.

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On a perusal of the proposed amendment, it could be seen

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that the petitioners-appellants sought to include that the 4^th plaintiff was

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representing the Community People as found in the plaint.

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C.R.P.(NPD).No.29 of 2013

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On a perusal of the cause title found in the plaint and in the

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grounds of appeal, it is clear that the appellants have committed a bona fide mistake in not including the words representing “Ulagamapuram Vellalan Chetti Community People”.

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The Lower Appellate Court, erroneously dismissed the application. The reasoning given by the Lower Appellate Court cannot be accepted for the reason that the cause title in the memorandum of appeal in A.S.No.62 of 2008 should contain the cause title as found in the plaint.

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When there is a bona fide mistake, the Lower Appellate Court, should not have dismissed the application.

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The learned counsel appearing for the respondents submitted

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that since the suit has been filed on representative capacity, a new party cannot be impleaded under Order I, Rule 8 CPC and that the appellants can only file an application under Order I Rule 10 of CPC to implead the 4^th plaintiff as respondent in the appeal.

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C.R.P.(NPD).No.29 of 2013

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However, this contention cannot be accepted for the reason that even in the cause title in the plaint, the 4^th plaintiff was representing Ulagamapuram Vellalan Chetti Community People and therefore, there is no necessity for filing an application under Order I Rule 10 of CPC. Only if a new party is to be added in the suit or in the appeal, then the provisions of Order I Rule 10 of CPC shall apply. Since the 4^th plaintiff is already a party representing Community People in the suit, the filing of application under Order I Rule 10 of CPC shall not arise.

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In such view of the matter, the order passed by the Lower Appellate Court in I.A.No100 of 2012 is liable to be set aside. Accordingly, the same is set aside. The application in I.A.No.100 of 2012 stands allowed.

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It is brought to the notice of this Court that the petitioners-appellants in A.S.No.62 of 2008 omitted to mention the 3^rd plaintiff's name in the memorandum of appeal. The learned counsel appearing for the petitioners submitted that since the name of the 3^rd plaintiff has been shown as deceased in the decree passed in O.S. No.133

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C.R.P.(NPD).No.29 of 2013

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of 199, the 3^rd plaintiff's name was not mentioned in the grounds of appeal. The learned counsel appearing for the respondents submitted that the 3^rd plaintiff is very much alive and therefore, he should have been made as a respondent in the appeal.

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10 . This also appears to be a bona fide mistake committed by the appellants for the reason that the name of the 3^rd plaintiff has been shown as deceased person in the decree. Therefore, they did not array the 3^rd plaintiff as a respondent in the appeal in A.S.No.62 of 2008.

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In these circumstances, liberty is given to the appellants to file appropriate application to implead the 3^rd plaintiff, viz., Thirukachi Nambi Chettiar representing Ulagamapuram Vellalan Chetti Community People as respondent in the appeal in A.S.No.62 of 2008.

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With these observations, the Civil Revision Petition is allowed. No costs. Consequently, the connected miscellaneous petition is closed.

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04.11.2019

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Index : Yes / No Speaking order / Non Speaking Order Rj

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C.R.P.(NPD).No.29 of 2013

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The Additional Subordinate Judge, Tiruvannamalai.

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The District Collector, Tiruvannamalai District, Tiruvannamalai

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C.R.P.(NPD).No.29 of 2013

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M.DURAISWAMY, J.

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C.R.P.(NPD)No.29 of 2013 and
M.P.No.1 of 2013

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04.11.2019

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A/M Arunachaleswarar v. Muthuraman Chettiar

Case brief

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A/M Arunachaleswarar v. Muthuraman Chettiar

Case brief

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