The learned counsel appearing for the revision petitioners would submit that in a partition suit, even after passing of preliminary decree, can be included other properties to serve the ends of justice and to avoid for multiplicity of proceedings and in the instant case, there is no dispute as to the identity of the suit properties particularly, survey numbers, but only with regard to one of the boundaries in Advocate Commissioner's report does not tally with plaint schedule. Further, the learned counsel pointed out that the cause of action of the suit will not be changed, if permitted to amend the schedule of properties. The learned counsel further submitted that the main object of Order 6 Rule 17 CPC is to avoid multiplicity of suits and in the instant case, it is mere rectification of mistakes in the description of properties which is permissible in law and therefore, prayed for to set aside the dismissal order passed by the trial court.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 10.07.2014
Coram
THE HONOURABLE MR.JUSTICE R.KARUPPIAH
C.R.P.(PD).No.614 of 2008 and
M.P.No.1 of 2008
1.Minor Anitha
represented by Mother Guardian Poongodi
2. Poongodi ... Petitioners
Vs.
1.Rajamanickam
2.Shankar
3. Kamala .. Respondents
CitationAIR 2015(NOC)297 MADRAS
The revision petitioners, who are the plaintiffs in the original suit filed this revision petition against the order dated 14.11.2007 made in I.A.No.391 of 2006 in O.S.No.399 of 2006 on the file of Principal District Munsif Court, Polur.
2. For the sake of convenience, the plaintiffs in the original suit are referred as revision petitioners and the defendants in the original suit are referred as respondents hereafter.
3. The revision petitioners filed a suit for partition of their 6/20 shares in three items of the suit schedule property. In the above said suit, a preliminary decree was passed on 15.04.2004. As per preliminary decree, an application in I.A.No.266 of 2005 was filed for passing final decree. In the above said final decree proceedings, an Advocate Commissioner was appointed and he had filed his report. After that the revision petitioner filed an application in I.A.No.391 of 2006 under Order 6 Rule 17 CPC to amend the schedule of properties and other coloumns in the plaint as follows:-
(1) jhth brhj;J tpguk; fhyj;jpy; 1tJ mapl;lj;jpy; 2tJ thpapy; 'fjt[ vz; 5' kw;Wk; 'jl;nlhL tPL vd;gij ePf;ft[k;, 3tJ thpapy; 'bjUtpw;F' vd;gij ePf;fp 'bry;tuh$p tPl;ow;F' vd nrh;f;f filrp thpapy; kjpg;g[ 'U.10,000' vd;gij ePf;fp '2000' vd nrh;f;f, 2tJ mapl;lj;jpy; 2tJ thpapy; 'fhypkid' vd;gij ePf;fp 'fjt[ vz;. 231-y; cs;s 'fhd;fphPl; tPL' vd nrh;f;f. filrp thpapy; kjpg;g[ 'U.2000' vd;gij ePf;fp '10,000' vd nrh;f;f.
4. In the above said affidavit filed by the revision petitioners, it is stated that a preliminary decree was passed on 15.04.2004 and as per the preliminary decree, the revision petitioners have filed an application for passing final decree in I.A.No.266 of 2005 in which, an Advocate Commissioner was also appointed. In the above said Commissioner filed his report in which, it is stated that in the 1st item, there is no tiled house and it is vacant site and also the eastern boundary not tallied with plaint schedule. It is also averred in the affidavit that the Commissioner also stated in his report that as per preliminary decree, 2nd item is vacant site but, in the above said item, there is a concrete house. It is also stated in the affidavit that the respondents have changed the super-structure as found by the Commissioner, since the revision petitioners are living far away from the properties and hence, they are not aware of the fact and also unable to inform to the counsel immediately and therefore, prayed for to amend the plaint as already stated.
5. In the detailed counter filed on behalf of the respondents, in which, it is stated that the revision petitioners filed the suit 10 years ago with false description of properties and hence, the respondents have not contested the above said suit. Further, it is stated that the preliminary decree and also the final decree had been passed with wrong description of properties. It is also averred in the counter that if the preliminary decree is amended, it is necessary to amend the final decree also. It is also stated that the entire suit properties are available as it is and there was no change in the properties by the respondents as contended by the revision petitioners. Further, the value of the properties are more than Rs.5,00,000/- and the revision petitioners also out of possession and therefore, the Court fee should have been paid under Section 37 (1) of Court Fee Act. It is also stated that since the 1/4th share of the value of the properties comes Rs.1,25,000/-, the suit ought to have been filed before Subordinate Court at Arni. The revision petitioners have failed to verify the properties and also filed with wrong descriptions and obtained preliminary decree. The revision petitioners now filed the application on the basis of Commissioner's report to amend the description of properties. Further, the revision petitioners have filed this application to amend the schedule of properties after passing of final decree, but the revision petitioners have failed to give acceptable reasons. Therefore, prayed for dismissal of the above said application.
6. The trial court has considered both side submissions and finally held that the revision petitioners have filed the application to amend the schedule of properties after passing of preliminary decree and the parties should have careful in filing the suit. Further, the applicants have not entitled to file the amendment application after commencement of trial and the details of amendment seeking in the application would change the character of the suit. The trial court also held that the revision petitioners ought to have filed a fresh suit and finally dismissed the application as not maintainable.
7. Aggrieved over the above said dismissal order passed by the trial court, the revision petitioners have preferred this revision petition.
8. The point for consideration in this revision petition is that whether the revision petitioners are entitled to amend the plaint under Order 6 Rule 17 CPC as prayed for in the application after passing final decree ?''
9. The learned counsel appearing for the revision petitioners would submit that in a partition suit, even after passing of preliminary decree, can be included other properties to serve the ends of justice and to avoid for multiplicity of proceedings and in the instant case, there is no dispute as to the identity of the suit properties particularly, survey numbers, but only with regard to one of the boundaries in Advocate Commissioner's report does not tally with plaint schedule. Further, the learned counsel pointed out that the cause of action of the suit will not be changed, if permitted to amend the schedule of properties. The learned counsel further submitted that the main object of Order 6 Rule 17 CPC is to avoid multiplicity of suits and in the instant case, it is mere rectification of mistakes in the description of properties which is permissible in law and therefore, prayed for to set aside the dismissal order passed by the trial court.
10. Per contra, the learned counsel appearing for the respondents would submit that the properties are available as it is at the time of filing the suit itself and absolutely there is no change in the properties. It is further submitted that since the revision petitioners filed a suit with false description, the respondents have not contested the suit and therefore, exparte preliminary decree was passed. Further, the learned counsel pointed out that the value of the properties at the time of filing the suit is more than Rs.5,00,000/- (Rupees Five Lakhs only), but, the court fee paid by the revision petitioner in the plaint is incorrect. Further, the learned counsel pointed out that now in the above said suit, preliminary decree and also final decree have been passed and if permitted to amend the the description of properties in the plaint, the final decree already passed also will become infructuous. Hence, the revision petitioners entitled to file only a fresh suit and not entitled to amend the plaint as prayed for in the petition.
11. Admittedly, the revision petitioner filed a suit for partition in respect of three items of the suit schedule property and extracted the above said description of properties as follows:-
''1. jpUtz;zhkiy khtl;lk;. nghSh; tl;lk;. nghSh; lt[d; fpuhkej;jk; f/vz;/264 gp1 jk;g[ jDR bjUtpy; fPH; thilapy; fjt[ vz; 5 cs;s jl;nlhL tPLk;. fhyp kida[k;. nkw;go bjUtpw;f;F fpHf;F mz;zhkiy ft[z;lh; tPl;ow;f;F tlf;F. gUtj uh$Fy bjUtpw;f;F bjw;F. rpd;dFHe;ij ghfj;jpw;F nkw;F kj;jpapy; fp x nk 26 1 / 2 t x bj 23 mo Mf bkhj;jk; 609 1/2 rJu mo kjpg;g[ U.10,000/-.
2. nghSh; lt[d; gUtj uh$Fy bjUtpy; bjd; thilapy; cs;s fhypkid rpd;dFHe;ij ghfj;jpw;F bjw;F mz;zhkiy njhl;lj;jpw;F tlf;F gr;rpag;g ehl;lhh; tPl;ow;f;F nkw;F. Fs;s ft[z;lh; tPl;ow;f;F fpHf;F ,jd; kj;jpapy; fp x nk 16 1/2 t x bj 20 mo Mf bkhj;jk; 330 rJu mo kjpg;g[ U.2,000/-.
3. nkw;go kidapy; ,Ue;J bjUtpw;f;F tu nghf ehuhrdk; fp x nk 3 mo. t x bj 14 1/2 mo Mf bkhj;jk; 43 1/2 rJu mo kjpg;g[ U.5,00/-.''
12. Both sides admitted that the revision petitioners have totally valued the above said three items as Rs.12,500/- only and paid the court fee accordingly and in the above said suit, preliminary decree for partition and also final decree have been passed.
13. In the above said circumstances, the revision petitioners filed an application in I.A.No.391 of 2006 under Order 6 Rule 17 CPC to amend the schedule of properties and other coloumns in the original plaint, as follows:-
(1) jhth brhj;J tpguk; fhyj;jpy; 1tJ mapl;lj;jpy; 2tJ thpapy; 'fjt[ vz; 5' kw;Wk; 'jl;nlhL tPL vd;gij ePf;ft[k;, 3tJ thpapy; 'bjUtpw;F' vd;gij ePf;fp 'bry;tuh$p tPl;ow;F' vd nrh;f;f filrp thpapy; kjpg;g[ 'U.10,000' vd;gij ePf;fp '2000' vd nrh;f;f, 2tJ mapl;lj;jpy; 2tJ thpapy; 'fhypkid' vd;gij ePf;fp 'fjt[ vz;. 231-y; cs;s 'fhd;fphPl; tPL' vd nrh;f;f. filrp thpapy; kjpg;g[ 'U.2000' vd;gij ePf;fp '10,000' vd nrh;f;f.
14. As rightly pointed out by the learned counsel appearing for the respondents, the revision petitioners have filed the revision petition in respect of three items of properties as per the original plaint. In the 1st item in the original plaint, it is stated as if there is a tiled house in Door No.5 and value of Rs.10,000/-. The description of 2nd item reveals that 330 sq.ft., vacant site and value of Rs.2,000/- and the description of 3rd item reveals that 43 = sq.ft., vacant site and value of Rs.500/-. But, on a perusal of an amendment sought for in the application reveals that the revision petitioners prayed for to delete the description as the tiled house in the 1st item and also prayed for to delete the boundary and also change the value of the 1st item. With regard to the 2nd item, the revision petitioners prayed for to delete the description of ''vacant site'' and include as ''Door No.231 concrete house'' and prayed for to change the value of the property from Rs.2000/- to Rs.10000/-. From the above said details of amendment sought for by the revision petitioners reveals that the revision petitioners have filed the above said suit with wrong description of properties in both items and also wrongly valued the properties. Further, it is reveals that the value of the properties are above Rs.5,00,000/-. In the above said circumstances, if the revision petitioners permitted to amend the plaint, the jurisdiction of the trial court also will be changed from Disctrict Munsif Court to Subordinate Court.
15. To substantiate the contention of the revision petitioners, the learned counsel relied on the following decisions:- 1. AIR 1980 SC 691(Neelavathi and others v. N.Natarajan and others). 2. 1983 LW 96(T.P.Palaniswami and another v. Deivanaiammal and others) 3. AIR 1974 AP 201Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah and others). 4. 1996 (2) LW 539 (R.Srinivasan v. M.Thambusamy). 5. 2012 (5) CTC 803 (Abdul Rehman & another v. Mohd.Ruldu & others). 6. (2012) 3 SCC 548 (Bimal Kumar and another v. Shakuntala Debi and others).
16. On a perusal of the facts of the above said decisions would reveal that the above said facts are not applicable to the facts of the present case. In the instant case, the revision petitioners have suppressed the material facts and stated as if one tiled house is situated in the 1st item. Likewise, the revision petitioners have described the 2nd item in the original suit as if it is vacant site by suppressing the concrete house worth about Rs.5,00,000/- situated. Further, door number of the house also differs. Therefore, from both side contentions, this Court is of the view that the revision petitioners have suppressed the material facts in the original plaint and obtained the decree by paying less court fee and if permitted to amend the plaint at this stage, the jurisdiction of the court also will be changed. Therefore, the revision petitioners are not entitled to the relief sought for in the application as rightly held by the trial court. Therefore, the dismissal order passed by the trial court is correct and there is no need to interfere with the above said correct findings of the trial court.
In the result, this civil revision petition is dismissed. No order as to costs. Consequently connected miscellaneous petition is closed.
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