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Tamil Nadu Real Estates through its Director S.A. Ispahani, Chennai v/s K. Muthukrishna Raja (Died) & Others

    C.R.P. (MD) No. 153 of 2015 & M.P. (MD) No. 1 of 2015
    Decided On, 04 January 2019
    At, Before the Madurai Bench of Madras High Court
    By, THE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALU
    For the Petitioner: A. Sivaji, Advocate. For the Respondents: A. Muthumanickam, M/s. Polax Legal Solutions, Advocates.


Judgment Text
(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, 1950, praying to allow the Civil Revision Petition with costs by setting aside the fair and decreetal order dated 14.11.2014 made in I.A. No. 396 of 2014 in O.S. No. 33 of 2004 on the file of the Principal District Court, Virudhunagar District at Srivilliputtur.)

1. The Second Defendant in O.S. No. 33 of 2004 on the file of the Principal District Court, Virudhunagar District at Srivilliputtur has preferred this Civil Revision Petition against the order dated 14.11.2014 in I.A. No. 396 of 2014 in that suit rejecting the application for filing Additional Written Statment. The parties are hereinafter referred to as per their description in the suit before the Trial Court for the sake of convenience.

2. The aforesaid suit had been instituted by the Plaintiffs, viz., P.K. Muthukrishna Raja, Subramaniyan, Pappammal, Gurusamy and Thilagam for partition of the properties of Ramalinga Varagunarama Pandya Chinna Thambiar who died intestate on 09.01.2014. In the Schedule to the plaint in the suit, item Nos. 10 to 13 of the properties have been described as follows:-

“10. Madras The Banglaw called “Games Cott” and the site and land to the south of Garli Bangalow belonging to Telaprole Zamindar, to the west of Hiawath Bungalow of Sivagiri Zamin to the North of Authuman Shade, Bangalow and to the east of the Bungalow of Himbagani & Sons, Nungambakkam (Market value Rs. 5,00,000/-).

11. Madras the site land and the Bangalow called “Hiswatha” to the east of the sale Bangalow of Telaprole Zamindar to the west of the Bangalow Varada of Sivagiri Zamindar and to the north of the Authuman Shads Bangalow (Market value Rs.5,00,000/-).

12. Madras the site land and the Bangalow “Varada” to the east to the said Hiswatha Bungalow, to the south of the Bungalow of the Telaprole Zamindar, to the west of Ayiravilaku Paracheri and to the North of the Bungalow of Mr. J.R.P. Of Branson, Market value Rs.5,00,000/-.

13. Madras the site, land and “Witcraft” Bungalow to the south of the Nanja to the west of the Nungambakkam High Road to the North of the Sherlings Road and to the east of the Nungambakkam Parachani. Market value of Rs.5,00,000/-.”

The Second Defendant had filed Written Statement contending that neither the Plaintiffs nor the other Defendants had any title to the properties described in item Nos. 10 to 13 mentioned in the Schedule to the plaint in the said suit, which exclusively belong to the Second Defendant. After the commencement of trial, the Second Defendant had made an application in I.A. No. 396 of 2014 to file Additional Written Statement dated 01.08.2014. The Trial Court by impugned order dated 14.11.2014 rejected that application for the reason that the Second Defendant had not reserved the right to file Additional Written Statement, the delay in filing the same had not been explained and events prior to the year 2000 were mentioned in that Additional Written Statement.

3. Learned Counsel for the Second Defendant by contending that on a perusal of the averments of the plaint in the suit, there is nothing to indicate why the Second Defendant had been shown as a party therein, submitted that the Additional Written Statement that is sought to be filed by the Second Defendant contains details relating to item Nos. 10 to 13 mentioned in the Schedule to the plaint in the suit so as to justify the contention that the Plaintiffs and the other Defendants did not have any title to those properties and that the necessity for filing the Additional Written Statement had arisen because the Second Defendant would be otherwise precluded from adducing evidence without necessary pleadings to that effect.

4. The Learned Counsel for the Plaintiffs justified the impugned order by contending that the amendment was belated and particularly in view of the provisions of Rule 17 of Order VI of the Code of Civil Procedure, 1908 (as amended by Act 22 of 2002, which came into effect from 01.07.2002), the amendment after the commencement of trial could not be permitted as the Second Defendant had not proved that inspite of due diligence, the amendment sought could not have been raised before the commencement of the trial.

5. Having regard to the rival contentions and on perusal of the Additional Written Statement sought to be filed, it is seen that the same relates to establishing the right of the Second Defendant in respect of item Nos. 10 to 13 of the properties mentioned in the Schedule to the plaint in the said suit in respect of which the Plaintiffs claim for partition, while the Second Defendant contends that the Plaintiffs and other Defendants do not have any title to those properties, which extensively belong to the Second Defendant. In the affidavit filed in support of the application for amendment, it has been explained that the Additional Written Statement had been prepared after collecting particulars relating to the said properites from the Counsel in different Courts, who had previously conducted litigations on behalf of the Second Defendant in respect of those properties. As such, it is evident that the amendments are required for the effectual and complete adjudication of the matter in issue in the said suit and the Plaintiffs cannot be prejudiced in any manner by permiting the filing of the Additional Written Statement which is only in furtherance of establishing the contention of the Second Defendant that it has exclusive title over those properties. Insofar as the question of delay in filing that application is concerned, it is noticed from the averments in paragraph 9 of that Additional Written Statement that the litigations related to the period after the filing of the suit and resultantly, the delay caused could not be put against the Second Defendant. However, taking into consideration the length of t

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he delay, the Plaintiffs would have to be compensated by the Second Defendant by way of costs, which is fixed at Rs.5,000/-. The said amount has been paid today by the Second Defendant to the Plaintiffs, which is acknowledged by the Learned Cousel for the Plaintiffs before this Court. Accordingly, the order dated 14.11.2014 in I.A. No. 396 of 2014 in O.S. No. 33 of 2004 passed by the Trial Court is set aside and the Additional Written Statement filed by the Second Defendant shall be taken on record in the suit. 7. The Civil Revision Petition is allowed on the aforesaid terms. Consequently, the connected Miscellaneous Petition is closed. No costs.
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