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V. JAYALAKSHMI & OTHERS V/S KASIRAJAN & OTHERS, decided on Thursday, January 28, 2016.
[ In the Before the Madurai Bench of Madras High Court, C.R.P.(MD).PD.No. 2446 of 2012. ] 28/01/2016
Judge(s) : T. MATHIVANAN
Advocate(s) : M.S. Balasubramania Iyer. Respondnets R1, N. Dilip Kumar, R2 & R3, Kingsley Solomon.
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    1. This memorandum of Civil Revision has been directed against the fair and decreetal order dated 06.01.2012 and made in the Interlocutory Application in I.A.No.47 of 2011 in A.S.No.2 of 2011 on the file of the learned Subordinate Judge Sivakasi as against the Judgment and Decree dated 19.11.2010 in O.S.No.99 of 2003 on the file of the learned District Munsif Sivakasi.2. The revision petitioners herein are the plaintiffs in the suit in O.S.No.99 of 2003 on the file of the learned District Munsif Sivakasi whereas the respondents 1 to 3 herein are the defendants in the suit and the respondents in the appeal. The respondents 3 and 4 are the legal representatives of the first defendant Narayanasamy (since deceased).3. For easy reference and also for the sake of convenience the revision petitioners may hereinafter be referred to as the petitioners and the respondents be referred to as the respondents wherever the context so require.4. Heard Mr.M.S.Balasubramania Iyer learned counsel appearing for the appellants and Mr.N.DilipKumar learned counsel appearing for the first respondent and Mr.Kingsley Solomon learned counsel appearing for the respondents 2 and 3.5. The appellants had filed a suit in O.S.No.99 of 2003 on the file of the learned District Munsif Sivakasi as against the respondents seeking the relief of declaration to declare that they are the absolute owners of the suit property and also for the consequential relief of permanent injunction. The respondents had contested the suit by filing their written statement.6. On evaluating the evidences both oral and documentary the learned Trial Judge 'viz' the learned District Munsif Sivakasi had proceeded to dismiss the suit on 19.11.2010. Having been aggrieved by the judgment of dismissal the appellants (plaintiffs) had preferred an appeal in A.S.No.2 of 2011 on the file of the learned Subordinate Judge Sivakasi. During the pendency of the appeal the appellants had taken out an application in I.A.No.47 of 2011 under Order 6 Rule 17 and Section 151 of the Code of Civil Procedure 1908 seeking permission to amend the plaint by inclusion of the particulars detailed in the petition. This petition was contested by the respondents. After hearing both sides the First Appellate Court had dismissed the petition.7. While dismissing the petition on 06.01.2012 the learned Subordinate Judge (Sivakasi) had placed reliance upon the following two decisions:-(I) KENCHEGOWDA (SINCE DECEASED) BY LEGAL REPRESENTATIVES VS. SIDDEGOWDA ALIAS MOTEGOWDA 1994 (4) SCC 294.(2) REVAJEETY BUILDERS AND DEVELOPERS VS. NARAYANASAMY AND SONS AND OTHER (2009) 10 SCC 84.8. In Kenchegowda cited first supra the Hon'ble Supreme Court has observed that the suit for declaration of title and injunction against the sale of property cannot be converted into one for partition merely on the basis of plaintiff's application under Order 6 Rule 17 as the cause of action and reliefs being different in nature and this being so a decree for partition could not have been granted on a mere application for amendment. It is also held that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be granted is incorrect.9. In Revajeety Builders and Developers cited second supra the Hon'ble Apex Court has held that an amendment changing the nature and character of the case cannot be allowed. Following the above decisions the learned First Appellate Court Judge has found that since the proposed amendment changes the causes of action as well as the nature and character of the case and introduce a new relief also the proposed amendment could not be allowed.10. This Court has perused the averments of the plaint as well as the written statement filed by the parties to the suit. Based on their pleadings the trial court had formulated as nearly as five issues of which issue nos.1 and 4 are very much relevant.Issue No.1 :Is it true that there was an oral partition in 1930 and 1/3 of property in S.No.661/1 was allotted to the share of plaintiff's father ?Issue No.4 :Whether the plaintiffs are entitled to the relief of declaration and injunction as prayed for ?11. It is significant to note here that the plaintiffs had filed the above suit in O.S.No.99 of 2003 for declaration to declare that the suit properties are belonged to them and for the consequential relief of permanent injunction. On perusal of the judgment of the trial court this Court finds that the issue No.1 has been answered against the plaintiffs saying that the appellants had failed to prove their contention of oral partition said to have been effected in the year 1930. Secondly issue No.4 has also been answered as against the plaintiffs saying that the plaintiffs are not entitled to the relief of declaration and injunction.12. Mr.M.S.Bala Subramania Iyer learned counsel appearing for the appellants while advancing his argument has adverted to that the trial Court had given a finding for the first issue that the appellants had failed to prove the partition said to have been effected in the year 1930 and for the 4th issue the Trial Court had also found that the plaintiffs were not entitled to the relief of declaration and injunction. The findings of the Trial Court itself had accelerated the appellants(plaintiffs) to move the First Appellate Court with an application under Order 6 Rule 17 seeking permission to amend the plaint for the inclusion of alternative reliefs of partition. He has also submitted that by inclusion of proposed amendment the character and nature of the suit would not in any way be altered and further though the appellants had already sought the relief of declaration and permanent injunction their right of seeking alternative relief of partition could not be taken away. He has also argued that the observation made by the First Appellate Court saying that the cause of action as well as the reliefs sought for were completely different and that the proposed amendment could not be allowed was not at all correct and it was in total negation of the Principles of Natural Justice.13. He has also maintained that the observation of the learned First Appellate Court was erroneous and the learned Judge had miserably failed to understand the real issue which was involved in this case in proper perspective because the facts were not new as they were already in existence in the plaint. The learned counsel had proceeded further and contended that already the appellants had pleaded that there was an oral partition in the year 1930 and since it was rejected by the trial court it had to be presumed that the Court was under the impression that the properties were not subjected to partition even in the year 1930 and due to this reason the petitioners (plaintiffs) had come forward with an application under Order 6 Rule 17 seeking alternative relief of partition which ought not to have been negatived by the First Appellate Court.14. In support of his contention Mr.M.S.Balasubramania Iyer had placed reliance upon the following two decisions:-i) FIRM SRINIWAS RAM KUMAR VS. MAHABIR PRASAD AND OTHERS AIR (38) 1951 (SC) 177.ii) KRISHNA AYYAR VS. GOMATHI AMMAL AND OTHERS AIR (32) 1945 MADRAS 33.15. In Firm Sriniwas Ram Kumar cited first supra Mukherjea J while penningdown the judgment on behalf of three judges bench of the Supreme Court has observed as under:-''A pltf. may rely upon different rights alternatively & there is nothing in the Civil P.C. to prevent a party from making two or more inconsistent sets of allegations & claiming relief thereunder in the alternative. The question however arises whether in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. on a case for which there was no foundation in the pleadings & which the other side was not called upon or had an opportunity to meet. But when the alternative case which the pltf. could have made was not only admitted by the deft. in his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit there would be nothing improper in giving the pltf. a decree upon the case which the deft. himself makes. A demand of the pltf. based on the deft's own plea cannot possibly be regarded with surprise by the latter & no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings. In such circumstances when no injustice can possibly result to the deft. it may not be proper to drive the pltf. to a separate suit.''16. In Krishna Ayyar's case cited second supra King J has observed that where the relief clause has been amended after the period of limitation but the facts upon which the reliefs as amended were claimed were already part of the plaint when it was first presented there can be no question that it is only at this stage that the plaintiff is putting forward a new case against the defendant and the amendment should be allowed.17. Mr.M.S.Balasubramania Iyer has contended that if the proposed amendment gives quietus to entire proceedings and prevents the parties from approaching from other Forum then the proposed amendment could be allowed. He has also added that the plaintiffs were entitled as a matter of right to have those amendment made and the only discussion left for the Court was about the terms if any on which he might be permitted to amend.18. It may be relevant to note here that it is the settled proposition of law that the amendment of pleadings at any stage under Order 6 Rule 17 could be permitted. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings because the appeal is continuation of the suit.19. It is also the settled proposition that all amendments ought to be allowed which satisfy the following two conditions:-a) of not working injustice to the other side.b) of being necessary for the purpose of determining the real questions in controversy between the parties.20. Amendments should normally be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct but the amendment would cause him an injury which could not be compensated in costs. In North Eastern Railway Administration Gorakhpur v. Bhagvan das (D) by Lrs) 2008-4-LW-80 while speaking on behalf of a Division Bench Hon'ble Mr.Justice D.K.Jain in paragraph 15 has observed as under:-''15. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirogonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & others AIR 1957 SC 363 which still holds the field it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct but the amendment would cause him an injury which could not be compensated in costs. (Also see:Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166)''.21.Order VI of the CPC provides for pleadings generally. Rule 17 contemplates Amendment of Pleadings. It reads as under:-Rule 17 of Order VI :-Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.Provided that no application for amendment shall be allowed after the 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.22.It is pertinent to note here that Rule 17 was originally omitted by the Code of Civil Procedure (Amendment) Act 46 of 1999 and again substituted by Code of Civil Procedure (Amendment) Act 22 of 2002 with effect from 01.07.2002.23. Prior to substitution (before Act 46 of 1999) Rule 17 read as follows:-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.24. It is to be noted that the original provisions of Rule 17 has been brought back by way of substitution by the Code of Civil Procedure (Amendment) Act 22 of 2002 with effect from 01.07.2002 along with a proviso.25. It is explicit from the provisions of Rule 17 that it is the discretion of the Court to allow either party to alter or amend his pleadings at any stage of the proceedings in such manner and on such terms as may be just. Secondly it exemplifies that all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.26. It is thus made clear that for the purpose of determining the real question in controversy between the parties all such amendment shall be made; Provided the proposed amendments are absolutely necessary.27. The proviso to Rule 17 contemplates that no application of amendment shall be allowed after the trial has commenced. The rigidity of the first portion has been elasticated in the second portion of the proviso and the legislators have carefully inter twinedwith''the word'' unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial no application for amendment shall be allowed after the trial has commenced. Rule 17 enables either party to alter or amend their respective pleadings at any stage of the proceedings. The proviso says that no such application for amendment shall be allowed after the trial has commenced.28. In BACHAN LAL VS. STATE OF UTTARANCHAL AIR 2004 UTTRA. 23 it has been held that :-''Where prayer made for amendment of pleading under Order 6 Rule 17 by amendment Act of 2002 the prayer should not be disallowed by taking hypertechnical view. The plaintiff sought amendment for declaring that the order of cancelling the patta was null and void held to determine the real question in controversy amendment can be allowed. From the perusal of the amendment which are sought to be incorporated it appears that the plaintiff has already taken the plea that the order dated 16.07.1984 passed by the District Magistrate/Collector Uttrakashi be quashed in other words since the quashing is not possible by the civil court and the suit can be brought only under the provisions of Specific Relief Act therefore the plaintiff has sought amendment for declaring the same to be void. In other words the plaintiff was already conscious of the fact that the order dated 16.07.1984 is null and void only due to defective pleadings quash was mentioned instead of declaring to be void. It is a settled law that at the time of the allowing of amendment the Court has only to look as to whether the ingredients of Order VI Rule 17 are satisfied or not. Rule 17 is very much clear it provides that amendment can be allowed at any stage or proceedings on such terms as may be just there is no quarrel with the proposition that amendment was sought at the trial stage and that too without changing the nature of the suit.''29. With regard to the time barred amendments Allahabad High Court has taken a new line of approach saying that ''the question whether the proposed relief in an application for amendment is time barred or not has to be decided while deciding the dispute in the main suit and not at the time of disposal of the amendment application. This line has been based on the view that in allowing or rejecting the application for amendment the Court does not go into the merits of the case or the rival claims See: U.P. ELECTRICITY BOARD V. M/S.SAROSOLE CHEMICALS LTD. 1994 (2) ALL RC 41 (PARA 11) relying on Kerala Decision in SURI FILMS V. S.N.GOVINDA PRABHU AIR 1989 KER. 29.''30. Insofar as this revision petition is concerned this Court would like to place it on record that the procedural law will not in any way be an obstruction to amend the plaint. Civil Courts are not meant to penalise the parties. It is also relevant to note here that the relief cannot be rejected on the ground that it was not asked for in the original pleadings if the amendment is necessary for rendering justice.31. In HARCHARAN VS. STATE OF HARYANA (1982) 3 SCC 408 the Apex Court has observed that:-''When an appeal is preferred the memorandum of appeal has the same position like the plaint in a suit. The appellant is confined to and also would be hold to the memorandum of appeal. To overcome any contention that such is not the pleading the appellant seeks the amendment. The amendment may be allowed at any stage of the proceedings for the purpose of determining the real question in controversy between the parties.''32. In an another case in SATHEEDEVI VS. PRASANNA AND ANOTHER (2010) 5 SCC 622 while speaking on behalf of the Division Bench Hon'ble Mr.Justice G.S.SINGHVI with reference to interpretation of statutes has observed in paragraphs 12 and 13 as under:''12. Before proceeding further we may notice two well recognized rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise Kanai Lal Sur v. Paramnidhi Sadhukhan 1958 SCR 360.13. The other important rule of interpretation is that the Court cannot rewrite recast or reframe the legislation because it has no power to do so. The Court cannot add words to a statute or read words which are not therein it. Even if there is a defect or an omission in the statute the Court cannot correct the defect or supply the omission. - Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323 Shyam Kishori Devi v. Patna Municipal Corporation (1966) 3 SCR 366.''33. On the other hand Mr.Dilipkumar learned counsel appearing for the 1st respondent has submitted that the revision petitioners were seeking to introduce a new case and they were trying to introduce a new cause of action as well. He has added further that the revision petitioners by way of proposed amendments wanted to amend the suit schedule property also. He has argued further about the facts of the case which does not require for the better disposal of this revision petition. He would further submit that the grounds of appeal raised by the petitioners would go to show that they were continuing the pleadings of their original suit and that they were continuing to contend that the suit schedule property was not subjected to partition in 1928 and it was originally partitioned only in 1930.34. In the earlier paragraphs this Court has discussed about the findings of the trial court that the plaintiffs were not able to substantiate their case that there was a partition in the year 1930. This finding itself has paved the way for the petitioners to come forward with an application under Order VI Rule 17 to amend the pleadings seeking alternative prayer of partition. As the trial court had given a finding as if there was no partition in the year 1930. Mr.Dilip Kumar has also submitted that the proposed amendment would cause serious prejudice to the respondents as it would alter the nature of the suit. In this connection he has placed reliance upon the following two decisions:-i) V.SRIDHAR VS. V.SRINIVASAN reported in 2009 (1) CTC 516ii) KENCHEGOWDA (SINCE DECEASED) BY LEGAL REPRESENTATIVES VS. SIDDEGOWDA ALIAS MOTEGOWDA 1994 (4) SCC 294.35.In the decision 2nd cited supra the Hon'ble Apex Court has held that the suit for declaration and injunction cannot be converted into for partition merely on the basis of plaintiff's application under Order VI Rule 17. Mr.Dilip Kumar has also contended that the original relief sought for in the plaint was to declare the petitioners' right over the suit property in respect of 3.84 acres of land in S.No.661/1. He has also added that by way of proposed amendment the revision petitioners were trying to introduce an alternative prayer for partition of three schedule properties and that two new schedule of properties were going to be introduced and included in the suit which could not be allowed.36. With reference to the arguments advanced by Mr.Dilip Kumar this Court would place reliance upon the decision of the Apex Court in L.C.HANUMANTHAPPA (Since Dead) represented by his Lrs. v. H.B.Shivakumar (AIR 2015 SC 3364). In this case while speaking on behalf of the Division Bench of the Apex Court Hon'ble Mr.Justice R.F.Nariman in paragraphs 15 and 17 has observed as under:-''15. As early as in the year 1900 the Bombay High Court in Kisandas Rupchand v. Rachappa Vithoba ILR 33 Bom 644 (1900) held as follows:''... All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties... but I refrain from citing further authorities as in my opinion they all lay down precisely the same doctrine. That doctrine as I understand it is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side or can it not ?''..........................................................17. Twenty years later the Privy Council in Charan Das v. Amir Khan 47 IA 255 (1920) : (AIR 1921 PC 50) stated the law as follows:-''That there was full power to make the amendment cannot be disputed and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time yet there are cases where such considerations are out-weighed by the special circumstances of the case.''37. In the light of the observation made by the Apex Court in the above cited decision this Court finds that if the proposed amendments are not working injustice to the other side and of being necessary for the purpose of determining the real question in controversy between the parties it can be allowed.38. During the course of his arguments Mr.M.S.Balasubramania Iyer has made reference to the following decisions:-1. FIRM SRINIWAS RAM KUMAR VS. MAHABIR PRASAD AND OTHERS A.I.R.(38) 1951 SCC 177.2. KRISHNA AYYAR VS. GOMATHI AMMAL AND OTHERS A.I.R.(32) 1945 MADRAS 33.3.V.R.NATHAN VS. MAC LABORATORIES (P) LTD. A.I.R.1975 MADRAS 1894.NORTH EASTERN RAILWAY ADMINISTRATION GORAKHPUR VS. BHAGWAN DAS (D) BY LRS. 2008-4-L.W.805. HARCHARAN VS. STATE OF HARYANA (1982) 3 SCC 4086.DONDAPATI NARAYANA REDDY VS. DUGGIREDDY VENKSATANARAYANA REDDY AND OTHERS AIR 2001 SCC 36857. PUNJAB NATIONAL BANK VS. INDIAN BANK AND ANOTHER 2003 (2) CTC 4378.PANKAJA AND ANOTHER VS. YELLAPPA (D) BY LRS AND OTHERS AIR 2004 SCC 41029. HI.SHEET INDUSTRIES VS.LITELON LIMITED 2006 (5) CTC 61010. BALDEV SINGH AND OTHERS VS. MANOHAR SINGH AND ANOTHER (2006) 6 SCC 49811. CHURCH OF SOUTH INDIA TRUST ASSOCIATION AND OTHERS VS. KOVIL PILLAI AND OTHERS 2007 (5) CTC 59512. RAMCHANDRA SAKHARAM MAHAJAN VS. DAMODAR TRIMBAK TANKSALE (DEAD) AND OTHERS (2007) 6 SCC 73713. USHA DEVI VS. RIJWAN AHMAD & OTHERS. AIR 2008 SCC 114714. VIDYABAI & OTHERS. VS. PADMALATHA & ANOTHER 2009-3-L.W.13715. C.RAJAMANI VS. C.RATHNABAI 2009 (4) CTC 21316. SATHEEDEVI VS. PRASANNA AND ANOTHER (2010) 5 SCC 62217. THAVITTU PONNU VS. DEVAKI AMMAL & OTHERS 2012-2-L.W.3518. RANI & ANOTHER VS. CHANDRA & OTHERS 2012-5-L.W.45319. MAHILA RAMKALI DEVI & OTHERS VS. NANDRAM (D) THR.LRs. & OTHERS AIR 2015 SCC 227020. L.C.HANUMANTHAPPA (SINCE DEAD) REPRESENTED BY HIS Lrs. VS. H.B.SHIVAKUMAR AIR 2015 SCC 336421.KALEESWARAN VS. UMA 2015-5-L.W.76122. KANDASAMY & ANOTHER VS. THIAGARAJAN & OTHERS 2015-5-L.W. 78339. Insofar as the present case is concerned as it is revealed from the plaint the suit property and several other properties were originally belonged to one Srinivasa Naicker. He has two sons namely Gopalsami Naicker (S.G.Naicker) and Ramasami Naidu (S.R.Naidu) and two daughters viz. Thayammal and Sithammal. After the demise of Srinivasa Naicker according to Hindu Law his sons alone are entitled to all properties.40. The revision petitioners/plaintiffs have claimed that there was a partition between the brothers in 1928 and under that partition certain properties were allotted to the share of S.G. Naicker and certain other properties were allotted to the share of S.R.Naidu and the remaining properties were kept in common between them. It is also revealed that the above said partition was reduced into writing in the form of a memorandum on 24.09.1928 as exhibited under Ex.B1.41. It is also the case of the revision petitioners that the suit property and its adjacent properties were kept in common. According to the case of the respondents/defendants the suit property comprised in S.No.666/1 was allotted to the share of S.G.Naicker and its adjacent property comprised in S.No.666/4 was allotted to the share of S.R.Naidu. It is also manifested that during his life time Srinivasa Naicker had made a gift in respect of 1/3 share in S.No.666/1 in favour of his son-in-law Alwarsami Naicker. But that partition was not demarcated and it was kept in common along with other portions comprised in S.No.666/1. The total extent is 10 acres 80 cents. It is also their case that there was an oral partition in 1930 between the brothers and under the said partition the northern portion measuring 3 acres 60 cents comprised in S.No.666/1 was allotted to Alwarsami Naicker and the southern portion was divided into the eastern and western portions and the eastern portion measuring 3 acres 60 cents was allotted to S.G.Naicker and the western portion of an extent measuring 3 acres 60 cents was allotted to S.R.Naidu. According to the revision petitioners this partition which was said to have been made in 1930 has been disputed by the defendants.42. According to the revision petitioners the 1st respondent had appointed the 2nd respondent as his Power of Agent for developing his property as house sites and also for the sale of those plots. Since the 2nd respondent being the Power Agent of 1st respondent had made an attempt to encroach upon the portion of the property belonging to the revision petitioners they were constrained to file the above suit which was in fact dismissed. Since the appeal is pending this Court does not want to step into the merits of the case.43. Having regard to all the relevant facts and circumstances of the case and on perusal of the grounds of revision along with the impugned order this Court finds that the revision petition deserves to be allowed.44. Accordingly the impugned order dated 06.01.2012 and made in the application in I.A.No.47 of 2011 in A.S.No.2 of 2011 is set aside and the application in I.A.No.47 of 2011 is allowed. The plaint of the suit in O.S.No.99 of 2003 shall have to be amended as sought for by the revision petitioners and the Subordinate Judge Sivakasi is directed to dispose the appeal in A.S.No.2 of 2011 within a period of two months from the date of receipt of a copy of this order. With the above direction this Civil Revision Petition is disposed of. However there shall be no order as to costs.