C.V.Ahamed Kutty (Died), 2. C.V. Alavi Kutty v. S.Ramalingam (Died), 2. S.Rajendran

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Civil Appellate Jurisdiction Friday, the Thirteenth day of September Two Thousand and Twenty Four PRESENT The Hon`ble Mr.Justice P. DHANABAL in AS NO.703 of 1992

¶1C.V.Ahamed Kutty (Died)

¶2C.V.Alavi Kutty

¶3Kunju Koyambu (Died)

¶4Fathima Kutty

¶5Abdul Khader

¶6Faizal

¶7Abida

¶8Shaharabanu

¶9Iyyathumma (Died)

¶10Ayisha Beevi

¶11Fathima

¶12Sainaba

¶13Muhammed Ashraf

¶14Muhammed Basheer ...Petitioners/Appellants

Vs 1 S.Ramalingam (Died)

2 S. Rajendran

3 Sengamala Servai Died 4 Rengasamy Servai Died

5 Sathiamurthy ( Died) 6 Govindammal ( Died) 7 Perumalsamy Naidu ( Died)

8 Chinnathambi

9 Kottaisamy Naidu

10 Lakshmi

11 Kaliaperumal

12 Soundarajan 13 Arumugam

14 Selvi. Pushpam ( Died)

15 Tmt. Mariammal

16 Tmt. Nagarathinam

17 Tmt. Tamilarasi( Died) 18 Mahalingam ( Died)

19 Mahadevan ( Died)

20 Ganesan

21 Gowri 22 Manikandan 23 Geetha 24 Manoharan ( Died) 25 Thilagavathi 26 Valarmathi 27 Ayyappan( Died) 28 Revathi

29 Kalaiselvi

30 Nanthakumar

31 Lalitha

32 Ashwanth

33 Ashwanth

34 Kalarani

35 Sakthi Prakash 36 Nithish Kumar 37 Indhira

38 R. Shivakumar

39 R. Subha

40 R. Agalya

41 R. Kumaran 42 Agilandam

43 Jeya 44 Rajam

45 Susila 46 Rajeswari ( Died)

47 Navaneetham

48 Meenakshi

49 Pattammal( Died) 50 Prema 51 Sampasivam

52 Ambikapathi (Died) 53 Karuppaiah

54 Muthukumar

55 Karthikeyan 56 Indhiragandhi

57 Muthulakshmi

58 Muthukumar 59 Nagalakshmi 60 Kalpana

61 Indhumathi

62 Alagaresan 63 Shanmugapriya 64 Rakshana

65 Nethra ... Respondents/Respondents

Prayer :- Civil Miscellaneous Petition filed under section 151 of CPC to amend the schedule of properties as 19 to 22 instead of 23 to 26 mentioned in the judgment and decree made in A.S. No. 703 of 1992 dated 21.06.2024 and thus render justice. PRAYER: The Appeal Suit is filed under under Order 41 Rule 1 of Code of Civil Procedure to set aside the judgement and decree of the Subordinate Court, Tanjore in O.S.No. 26 of 1984 dated 07.10.1991 in so far as it relates to the appellants suit items 19 to 22. ORDER:- This Petition coming on for orders on this day and upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr.V.Meenakshi Sundaram, Advocate for Mr.S.Thilagavathi, Advocate for the 2nd Petitioner and of Mr.J.Barathan, Advocate for Mr.I.Velpradeep, Advocate for the 4th to 8th petitioners , and of Mr.A.S.Mohammed Manzoor, Advocate for the 10th to 14th petitioners and of Mr.A.Senthil Kumar , Advocate for the 2nd Respondent and of Mr.P.Vadivel, Advocate for the 15th and 16th Respondents and of Mr.T.Selvan, Advocate for the 21st to 23rd , and 31st to 36th Respondents and of Mr.V.Ragavachari Senior Counsel for Mr.H.Thayymanasamy , Advocate for the 37th to 41 Respondents and of Mr.M.P.Senthil, Advocte for the 42, 44, 48, 50, 51, 53 to 55, 59 to 62 Respondents and of Mr.K.Kuppusamy, Advocate for the 43 and 47th Respondents and of Mr.K.Guhan, Advocate for the 45th Respondents this Court made the following order: This miscellaneous petition has been filed by the petitioners/ appellants/defendant No.10 and the legal heirs of defendants 9 and 11 seeking to amend the schedule of properties in the judgment and decree passed in A.S.No.703 of 1992 dated 21.6.2024 as item Nos.19 to 22 instead of item Nos.23 to 26.

¶2Heard the learned counsel appearing on either side.

¶3Learned counsel for the petitioners would contend that the fourth petitioner herein is the fourth appellant in the main appeal. In the year 2017, when the said appeal was taken up for final hearing, the petitioners came to know that in the grounds of appeal, the schedule of properties were wrongly described as item Nos.23 to 26. Actually, the claim of the appellants is only with regard to item Nos.19 to 22. But, unfortunately, the schedule of properties were wrongly described as item Nos.23 to 26. Therefore, earlier, they filed C.M.P.(MD) No.2295 of 2018 to amend the items of properties as item Nos.19 to 22 instead of item Nos.23 to 26 and the same was allowed on 07.6.2023. Thereafter, this Court allowed the main appeal namely A.S.No.703 of 1992 through judgment and decree dated 21.6.2024. In the said judgment dated 21.6.2024, the items of properties were inadvertently mentioned as item Nos.23 to 26 instead of Item Nos.19 to 22. Hence, the petitioners filed the present petition seeking to correct the typographical error that has crept in in the judgment and decree. No prejudice would be caused to the other side by allowing this miscellaneous petition.

¶4Per contra, the learned counsel for the respondents would contend that the petitioners have not amended the original plaint and the appeal memorandum, that now, they sought for amendment only in respect of judgment and decree of this Court dated 21.6.2024 passed in A.S.No.703 of 1992 and that the present miscellaneous petition is not maintainable without amending the original plaint and the appeal memorandum. Hence the miscellaneous petition may be dismissed.

¶5In support of his contentions, the learned counsel for the respondents placed relied on the following judgments of the Supreme Court in : "i. Uttar Pradesh State Road Transport Corporation Vs. Imtiaz Hussain [2006-I-LLJ 714 ] ii. State of Punjab Vs. Darshan Singh [2004 (1) SCC 328] iii. Dwarka Das Vs. State of Madhya Pradesh and another [AIR 1999 SC 1031]."

¶6This Court has carefully considered the submissions of the learned counsel on either side and perused the materials available on record.

¶7Upon hearing both sides and perusing the records, the point for determination in this miscellaneous petition is whether this petition has to be allowed or not.

¶8This petition has been filed by the petitioners seeking to amend the items of properties in the judgment and decree passed by this Court on 21.6.2024 in A.S.No.703 of 1992. This Court, while passing the judgment, mentioned the items of properties as item Nos.23 to 26 instead of item Nos.19 to 22. In fact, the items of properties have already been amended as Item Nos.19 to 22 as per order of this Court dated 07.6.2023 in C.M.P. (MD) No.2295 of 2018. However, the respondents objected to allow the present miscellaneous petition alleging that without amending the schedule of properties in the trial court pleadings and in the original plaint, this petition is not maintainable.

¶9As per the order of this Court in C.M.P.(MD) No.2295 of 2018 in A.S.No.703 of 1992 dated 07.6.2023, the items of properties mentioned as item Nos.23 to 26 have been amended as item Nos.19 to 22. Even after that, this Court without perusing the amendment, inadvertently in the appeal judgment marked the properties as item Nos.23 to 26 instead of item Nos.19 to 22. Therefore, the said suit item numbers recorded in the appeal judgment in A.S. No.703 of 1992 dated

21.06.2024 are only due to the typographical error and the same are to be amended.

¶10As above stated, this Court had already ordered to amend the items of properties as item Nos.19 to 22. Therefore, in the interest of justice, the present miscellaneous petition has to be allowed and no prejudice would be caused to the other side if the present petition is allowed. Further, the respondents have not raised any serious objections while allowing the petition in C.M.P.(MD) No.2295 of 2018 on 07.6.2023 to amend the items of properties in the grounds of appeal in A.S.No.703 of 1992. Moreover the respondents have not filed any appeal as against the said order dated 07.6.2023 in C.M.P.(MD) No.2295 of 2018. Hence, as per the above said order of this Court, the items of properties have been amended as item Nos.19 to 22. In the above said circumstances, it is appropriate to allow this petition.

¶11As far as the judgments relied upon by the learned counsel for the respondents are concerned, they will not applicable to the facts of the present case, because the schedule of properties and the memorandum of appeal were already amended as per the order of this Court.

¶12In the result, this petition is allowed and the items of properties are amended as item Nos.19 to 22 instead of item Nos.23 to 26. Sd/- Assistant Registrar (CS-III) // True Copy // /11/2024 Sub Assistant Registrar (CS-I, II, III, IV)

TO The Subordinate Judge, Tanjore . ORDER DATED : 13/09/2024 ==========================

ORDER ==========================

in

AS No.703 of 1992 Giving direction and etc. as stated within.

RD(14/11/2024)

P / 2C

Madurai Bench of Madras High Court is issuing certified copies in this format from 17.07.2023.