Elumalai v. Oomaiyan(Died) 1. Ellammal

ORDER The Civil Revision Petition is directed against the fair and decreetal order passed in I.A.No.5 of 2023 in O.S.No.17 of 2012, dated 28.08.2023 on the file of the District Munsif Court, Keeranur, dismissing the petition filed under Order VI Rule 17 of C.P.C.

¶2The respondents as plaintiffs have filed the suit to declare that the suit properties are belonging to them and for consequential permanent injunction restraining the defendants and their men from in any manner interfering with the peaceful possession and enjoyment of the suit properties. The defendants have filed their written statement on

11.06.2013, when the suit was in part-heard stage, the above petition seeking orders to amend the written statement came to be filed.

¶3The case of the revision petitioners/defendants is that the first defendant has purchased the second item of the suit properties from the first plaintiff on 10.06.1969; that the second defendant's husband had purchased the second item of the suit property 40 years ago from his father-in-law orally; that they have averred in the written statement that the properties are their ancestral properties by innocence and that therefore, its become just a necessary to amend the written statement so as to include their present stand with respect to the suit properties.

¶4The defence of the respondents/plaintiffs is that the above petition has been filed 10 years after filing of the original written statement; that the defendants have not assigned any valid reasons for amending the written statement; that the defendants have not approached the Court with clean hands and that therefore, the petition is liable to be dismissed.

¶5It is evident from the records that after filing of the written statement by the defendants on 11.06.2013, issues came to be framed on

20.02.2017; that subsequently, the plaintiffs have filed an application in I.A.No.554 of 2017 for amending the plaint and the same was allowed on

11.09.2017; that though opportunity was given to the defendants for filing the additional written statement consequent to the amendment of the plaint, they have not chosen to file any additional written statement; that the trial was commenced on 21.02.2018; that when the case was pending for P.W.1 cross examination, the second defendant was reported dead on

26.04.2016 and steps were taken; that the third plaintiff was also reported dead and since steps were not taken, the suit was ordered to be dismissed for default on 03.11.2018; that subsequently, the suit was restored to file; that thereafter, steps were taken and when the plaint was consequently amended, the above petition came to be filed 10 years after filing of their original written statement.

¶6Now turning to the proposed amendments, the defendants have claimed to replace the following the passage found in Page No.2 of the original written statement . " cz;ik epytuk; vd;dbtdpy; thjp tHf;fpy; 1tJ mapl;l brhj;jhf fhz;gpf;fg;gl;lLs;s brhj;Jk; ,d;d gpw brhj;Jf;fSk;> 1> 2 gpujpthjpfspd; ghfj;jpw;F xJf;fg;gl;lJ. mth;fspd; ghfj;jpw;F xJf;fptplg;gl;l gpd; 1> 2 gpujpthjpfs; jq;fs; jdpj;j mDgtj;jpy; itj;J ahUila FWf;fPLk; ,d;wp mDgtk; bra;J te;jdh;. mjd; gpd;dpl;L fle;j 26.03.1993k; tUlk; 2k; gpujpthjpapd; fzth; Kj;Jr;rhkp ehaf;fh; jdf;fhft[k;> jdJ ikdh; kfd; tHf;fpd; 5k; gpujpthjpf;F fhh;oad; vd;w KiwapYk;> kw;Wk; 3> 4 gpujpthjpfs; nrh;e;J jq;fsJ ghfj;jpw;F xJq;fpa brhj;jhd tHf;F m ml;ltizr; brhj;jpid 1 k; " "

gpujpthjpf;F fpiuak; bra;J bfhLj;Jtpl;ldh;. nkw;go fpiuaKk; tpuhypkiy rhh;gjpthsh; mYtyfj;jpy; g[j;jfk; 1 1993k; Mz;od; Mtz vz; 213 Mf gjpt[ bra;ag;gl;Ls;sJ. they wanted to replace with the following passage. me;j ,lj;jpy; tHf;F r.vz;.123 MdJ 1-k; gpujpthjpapd; "

jfg;gdhh; bgUkhs; ehaf;fh; vd;gth; 2-k; gpujpthjpapd; khkdhhplk; bgw;w flDf;fhf tHf;F r.vz;.123-I 2-k; gpujpthjpapd; fztUf;F Rkhh; 40 tUlq;fSf;F Kd;dh; tha;bkhHpahf fpuak; bfhLj;Jtpl;lhh;. mJ Kjy; 2-k; gpujpthjpapd; fzth; Kj;Jr;rhkp vd;w Kj;jhehaf;fh; vd;gtUf;F ghj;jpag;gl;L mtUila mDgtj;jpy; ,Ue;J te;jJ . "

¶7The defendants have also claimed to remove three lines found in page No.2 para No.5 of the original written statement, which is as follows: jhth m ml;ltiz brhj;J ,e;j 1k; gpujpthjpf;F fpilj;jt[ld; " " "

mjpy; ,Ue;j Tiu tPl;ow;F gjpyhf Xl;L tPlhf gad;gLj;jp tUfpwhh;. 1k; gpujpthjpapd; Xl;L tPl;ow;F fpHf;nf." In para No.6 of the original written statement, they have averred jhth M ml;ltiz brhj;ij thjpapd; jfg;gdhh; Rj;jypg;gl;o " " "

itj;jpaypq;fk; brl;oahh; kfd; nfhghy; brl;oahh; vd;gthplk; mlkhdk; itj;jij ,e;j 1k; gpujpthjp mlkhdf; flid fl;o jhth M " " ml;ltiz brhj;ij kPl;L jhd; itj;Jf; bfhz;lhh;. But, now they wanted to add another line by deleting the words kPl;L jhd; itj;Jf; bfhz;lhh;

" " with "fpuak; bgUk;bghGJ M " " ml;ltizr; brhj;jpYs;s mlkhdf; flid 1-k; gpujpthjpna brYj;jpdhh; ."

¶7Considering the above, as rightly contended by the respondents/plaintiffs side before the trial Court, the defendants have raised pleas which are totally inconsistent with their earlier stand and as such, they cannot seek proposed amendments in a casual manner by alleging that the present stand was not taken because of their innocence.

¶8At this juncture, it is necessary to refer the judgment of the Hon'ble Apex Court in Alkapuri Co-operative Housing Society Limited Vs. Jayantibhai Naginbhai reported in 2009 3 SCC 467, wherein it was observed that an application for amendment of the plaint seeking to introduce a cause of action which had arisen during the pendency of the suit stands on a different footing than the one which had arisen prior to the date of institution of the suit.

¶9Considering the above, the same position can very well be applied for the written statement also. Moreover, the defendants have not made out a case that inspite of their due diligence, they could not file the amendment application before trial.

¶10It is settled law that subsequent to the insertion of the proviso to Rule 17 of Order VI, no application for amendment shall be allowed after trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial and the entire object of the amendment introduced in the year 2002 is to stall filing of application for amending the peadings subsequent to the commencement of trial.

¶11As rightly observed by the learned trial Judge, after commencement of trial, the defendants cannot be allowed to fill up the lacunae through the proposed amendments.

¶12Viewing from any angle, this Court concludes that the defendants are not entitled to get the relief claimed and as such, the impugned order, dismissing the amendment petition cannot be found fault with. Consequently, this Court concludes that the Civil Revision is devoid of merits and the same is liable to be dismissed.

¶13In the result, the Civil Revision Petition is dismissed. However, the suit is pending from 2012 onwards, the learned trial Judge is hereby directed to complete the trial and dispose of the suit as expeditiously as possible preferably within a period of three months from the date of receipt of copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.

22.12.2023 NCC :yes/No Index :yes/No Internet:yes/No das To

1.The District Munsif Court, Keeranur.

2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai. K.MURALI SHANKAR

,J.

DAS and C.M.P.(MD)No.15908 of 2023 Dated : 22.12.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 30.11.2023 Delivered on : 22.12.2023 CORAM: THE HON'BLE MR.JUSTICE K.MURALI SHANKAR and C.M.P.(MD)No.15908 of 2023 1.Elumalai Pappa (died) 2.Rengasamy @ Durairaj 3.Ramasamy 4.Subramani : Petitioners/Petitioners/Defendants Vs. Oomaiyan (died) 1.Ellammal Govindharaj (died) 2.Anbazhagan 3.Jothilakshmi 4.Minor.Vijayaram 5.Minor.Devadharshini : Respondents/ Respondents/Plaintiffs Prayer : This Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.5 of 2023 in O.S.No.17 of 2012, dated 28.08.2023 on the file of the District Munsif Court, Keeranur. For Petitioners : Mr.A.Thiyagarajan