Allowed

N.Mustak Sheriff v. Ghouse Bi Ammal

Madras HC22 Aug 2024CRP/1782/2022

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition challenging an order refusing to allow an amendment to the plaint in a suit for partition. The court held that the trial court incorrectly examined the merits of the amendment and misapplied the dismissal of a previous, different amendment application. The revision was allowed, setting aside the lower court's order.

What did the court decide?

Order dated 02.11.2021 passed by I Additional Subordinate Judge, Salem set aside. Plaintiff granted leave to amend the plaint.

N.Mustak Sheriff Vs Ghouse Bi Ammal — Partition | Madras HC (2024)

¶1

C.R.P.No.1782 of 2022

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

DATED : 22..08..2024

¶4

Coram

¶5

THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN

¶6

Civil Revision Petition No.1782 of 2022 and C.M.P.No.8969 of 2022

N.Mustak Sheriff

..... Petitioner

-Versus-

1.Ghouse Bi Ammal (Died)

¶11

2.N.Mohadeen Sherif

¶12

3.N.Mahaboob Sheriff

¶13

4.N.Sardar Sheriff

¶14

5.N.Ismail Sheriff

¶15

6.N.Mallika Begum

¶16

7.N.Chan Begum

¶17

8.P.Rajamanickam (Died)

¶18

9.S.Suresh

¶19

10.J.Govindan (Died)

11.J.Abdul Kalam

12.J.Mohamed Sheriff

13.J.Piyaru

14.J.Mackbool

15.M.Jareeunnisa (Died)

16.Chan

17.Mohammed Shafi

18.M.Mohammed Ghouse

https://www.mhc.tn.gov.in/judis

¶29

1 of 7

¶30

C.R.P.No.1782 of 2022

¶31

19.M.Mohammed Riyas 20.Haseena Begum

¶32

21.Maharaj

¶33

..... Respondents Petition filed under

¶34

Article 227 of the Constitution of India, praying to set aside the fair and decretal order dated 02.11.2021 passed by the learned I Additional Subordinate Judge, Salem, in I.A.No.1 of 2020 in O.S.NO.118 of 1996.

¶35

For Petitioner : Mr.S.Mukunth, Senior Counsel for Mr.M.Kaviveerappan For Respondent (s) : Ms.Sumithra Vasudevan No appearance for RR2 to 6, 11 to 14 and 16 to 21 RR 1, 7, 8 10 & 15 Died

¶36

ORDER

¶37

This civil revision petition arises out of a suit for partition.

¶38

The plaintiff is the civil revision petitioner. The suit was presented in

¶39

the year 1996. The claim of the plaintiff is that the properties that had been allotted to one Navab Sherif, who is the father of the plaintiff and defendants 2 to 7 and husband of the 1^st defendant. Pending the suit, the defendants filed an application in I.A.No.29 of 2018 to include certain properties .The said application came to be dismissed and it has become final. Thereafter, the

¶40

2 of 7

¶41

https://www.mhc.tn.gov.in/judis

¶42

C.R.P.No.1782 of 2022

¶43

plaintiff took out an application to include certain properties, which according to the plaintiff, were also subject matter of allotment during the settlement proceedings. That application was numbered as I.A.No.1 of 2020 and notice was ordered to all the defendants. It was only the 2^nd defendant, who opposed the application. According to the 2^nd defendant, since the previous application for amendment to include certain properties had been dismissed the present application also does not deserve consideration. The learned Judger dismissed the application on two grounds. The first ground being the dismissal of the application in I.A.NO.29 of 2018 and the other ground being that the application is vague and does not include the material particulars. Hence, this revision petition.

¶44

I had ordered notice to the 2^nd respondent, the only defendant who contested the amendment application. The 2^nd defendant could not be served through the process of court. Therefore, invoking the powers vested in this court by the appellate side rules, I had ordered notice to the counsel who appeared for the 2^nd respondent in the court below. Accordingly, the learned counsel for the civil revision petitioner had taken notice and it was served on 10.05.2024 on the

¶45

learned counsel who appeared for the 2^nd respondent in the court below. Still

¶46

https://www.mhc.tn.gov.in/judis

¶47

3 of 7

¶48

C.R.P.No.1782 of 2022

¶49

there is no appearance for the 2^nd respondent. The learned counsel representing

¶50

the 7^th defendant has no objection for the amendment being granted.

¶51

Heard Mr.S.Mukunth, learned senior counsel for Mr.KaviVeerappan,

¶52

learned counsel on record for the civil revision petitioner and Ms.Sumithra Vasudevan for the 7^th respondent.

¶53

I have gone through the records.

¶54

The entire case of the plaintiff is based on the settlement proceedings

¶55

under which his father had been given properties. At the time of drafting of the plaint, the property that is sought to be included had been left out. In order to rectify that error an application had been filed. The learned Judge has demanded the plaintiff to prove that the property that is proposed to be included was granted under the settlement deed to the father.

¶56

At the stage of considering an amendment application, the court should not go into the merits of the application. It should only see, whether the application changes the cause of action and/or it is barred by limitation. Being suit for partition, the cause of action arises day-to-day and hence, it is not barred by limitation.

¶57

Insofar as the cause of action is concerned; by granting an amendment

¶58

https://www.mhc.tn.gov.in/judis 4 of 7

¶59

C.R.P.No.1782 of 2022

¶60

it continues to be a suit for partition and therefore, even that ground does not exist. In addition, I have to recollect the position that in a suit for partition all the properties have to be included and in case, they are not, the suit would have to be dismissed for partial partition. In fact, even at the second appellate stage, the court can exercise its jurisdiction of amendment and include the properties left out at the time of presentation of the plaint.

¶61

In this case, parties are still before the trial court and the evidence is not concluded. Therefore, no prejudice will be caused to the defendants in case the amendment is granted.

¶62

The other ground that the previous application for amendment had been dismissed and therefore, this application deserves dismissal also does not hold water. This is because, the property that was sought to be included in I.A.No.29 of 2018 is not the same property that is sought to be included in the present application in I.A.No.1 of 2020. I am therefore unable to sustain the order of the learned I Additional Subordinate Judge at Salem.

¶63

In the result, the civil revision petition is allowed. The order dated 02.11.2021 made in I.A.No.1 of 2020 in O.S.No.118 of 1996 by the learned Additional Subordinate Judge at Salem, is set aside. Leave is granted to the

¶64

https://www.mhc.tn.gov.in/judis 5 of 7

¶65

C.R.P.No.1782 of 2022

¶66

plaintiff to amend the plaint. No costs. Consequently, connected CMP is closed.

¶67

Index : yes / no 22 ..08..2024 Neutral Citation : yes / no Speaking / Non Speaking Order kmk

¶68

¶69

1.The I Additional Subordinate Judge, Salem, Salem District.

¶70

https://www.mhc.tn.gov.in/judis 6 of 7

¶71

C.R.P.No.1782 of 2022

¶72

V.LAKSHMINARAYANAN.J.,

¶73

kmk

¶74

C.R.P.No.1782 of 2022

¶75

22..08..2024

¶76

https://www.mhc.tn.gov.in/judis 7 of 7

N.Mustak Sheriff v. Ghouse Bi Ammal

Case brief

What is this about?

What did the court decide?

N.Mustak Sheriff v. Ghouse Bi Ammal

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

Ravi Vs Jayalakshmi

Balaraman Vs Kasinathan

Natar RAMAN(DIED)1.JAYACHITHRA Vs Vetrivel

S.Sumathi Vs P.Rathinasamy

H.Anbazhagan Vs R. Yogalakshmi

Logasundaran Vs the District Collecdtor