Savithri Ammal Vs. M.A.Gopal Naidu - Court Judgment

SooperKanoon Citationsooperkanoon.com/1168328
CourtChennai High Court
Decided OnFeb-12-2014
JudgeC.S.KARNAN
AppellantSavithri Ammal
RespondentM.A.Gopal Naidu
Excerpt:
in the high court of judicature at madras dated: 12.02.2014 coram the honourable mr.justice c.s.karnan c.r.p.no.531 of 2007 and m.p.no.2 of 2007 savithri ammal ..petitioner versus m.a.gopal naidu ..respondent prayer: civil revision petition has been filed under section 115 of the civil procedure code, against the fair and decreetal order dated 22.08.2005 and the consequential order dated 31.08.2005 passed in i.a.no.114 of 2004 in a.s.no.20 of 2003 on the file of the subordinate court, ponneri. for petitioner : mr.n.r.anantha rama krishnan for respondent : mr.v.chandrakanthan **** order the respondent herein / plaintiff has filed a civil suit in o.s.no.424 of 1983, on the file of district munsif court, ponneri against the revision petitioner herein / defendant to grant permanent injunction against the defendant, her men, agents and servants from interfering with the peaceful possession of the plaintiff and enjoyment of suit property. 2.the revision petitioner herein / defendant had filed a written statement and resisted the said suit. after contest, the suit was dismissed. against the dismissal of the said suit, the plaintiff has filed the above appeal in a.s.no.20 of 2003, on the file of sub court, ponneri and challenged the trial courts judgment and decree passed in o.s.no.424 of 1983, by the district munsif, ponneri. under the circumstances, the plaintiff / respondent herein has filed an auxiliary application in i.a.no.114 of 2004 in a.s.no.20 of 2003, stating that he had purchased the suit schedule mentioned property in the court auction on 30.03.1982 and also take delivery of the property through court on 31.04.1983. since the revision petitioner herein / defendant had attempted to interfere with the peaceful possession of the plaintiff, the plaintiff was constrained to file a suit for permanent injunction before the district munsif court, ponneri. in the said suit in o.s.no.424 of 1983, the particulars regarding boundaries of scheduled mentioned properties has been typed incorrectly and inadvertently. the same had not been noticed by the plaintiff till the disposal of the suit. after seeing the judgment and decree passed in the said suit, the respondent came to know about the incorrect particulars of the scheduled mentioned properties. the defendant had also not pointed out the clerical error in typing the boundaries. hence, the respondent herein has filed the auxiliary application in i.a.no.114 of 2004 to carry out the amendment. 3.the revision petitioner herein had filed a counter statement in the said amendment petition and resisted the same. the respondent pointed out that in the proposed amendment, the entire boundaries are substituted and altogether a new property is introduced and as such, such amendment cannot be allowed. besides, the proposed amendment changes the entire cause of action and also affects the character of the suit. further, the suit has been filed in the year 1983 and after a long delay, the miscellaneous petition has been filed for amendment. 4.on considering the averments of both parties and on hearing the arguments of the learned counsel on either side, the subordinate judge was pleased to allow the said amendment application in i.a.no.114 of 2004 in a.s.no.20 of 2003, on condition that the respondent herein shall pay a sum of rs.1,000/- on or before 30.08.2005, since the delay had been caused for filing the said application. 5.against the said order passed in the auxiliary application, the defendant has filed the above revision and has challenged the impugned order passed by the subordinate judge. the highly competent counsel mr.n.r.anantha rama krishnan submits that the respondent has filed a civil suit in o.s.no.424 of 1983, against the revision petitioner for permanent injunction. as such, he has to mention the description of the property and define the boundaries properly. it was not done and as such the suit itself is not maintainable since the plaint had carried incorrect particulars of the schedule mentioned properties. further, the decree has been passed in the year 2005 but the appeal has been filed in the year 2003, along with the amendment petition in i.a.no.114 of 2004. as such, there is a long delay in filing the said auxiliary application i.e.amendment petition in i.a.no.114 of 2004 in a.s.no.20 of 2003. further, if the plaintiff is the owner of the property, he should be very well aware of the boundaries of the plaint scheduled properties. further, the proposed amendment substituting an altogether near property in place of the suit property would necessitate fresh trial, which would cause further delay in the process of law. further, if the proposed amendment is carried out, the matter would have to be remanded to the trial court and as such, the revision petitioner would be directed to file additional written statement and also to obtain additional documents and records in respect of the substituted property. further, the decree and judgment passed in o.s.no.424 of 1983, by the trial court was on merits after full trial. further, if the amendment is carried out, the character of the suit will be affected and the original cause of action will be changed. the very competent counsel further submits that the plaintiff had not produced parent documents of the suit property. hence, the learned counsel entreats the court to set aside the impugned order passed in the interlocutory application by the subordinate judge, ponneri. 6.the highly competent counsel for the respondent herein / plaintiff vehemently argued that the plaintiff had not created any new documents to rectify the typographical error regarding the plaint scheduled property. actually the respondent had purchased the suit schedule mentioned property in the court public auction held on 31.03.1982 and the auction sale has also been confined by the learned district munsif court, ponneri on 31.03.1983. further, the property was delivered on 30.04.1983. from the date of delivery of the property, the respondent herein is enjoying the same without any interference. after sometime, the revision petitioner had made an attempt to interfere with the suit property. hence, the respondent had filed the civil suit to prevent wrong entry of defendant. the plaintiff had received a sale certificate and delivery receipt from the court on 31.03.1982 and 30.04.1983 respectively. the sale certificate was issued by the district munsif court, ponneri and as such there is no encumbrance or incorrect description of the plaint schedule mentioned property. the amendment to be carried out is with regard to the boundaries on the basis of original sale certificate and as such the character of the suit or the nature of the property would not be changed and the revision petitioner's rights will not be prejudiced in any manner. 7.the highly competent counsel further submits that the plaintiff has got right to file an appeal against the decree and judgment passed by the district munsif, ponneri in o.s.no.424 of 1983 in order to establish his civil rights before the subordinate court, ponneri, as he is the appellate authority to determine the irregularities and illegalities committed by the trial court, in his judgment. therefore, the appeal suit has been taken on file by the subordinate judge, ponneri. if the appeal suit is decided on merits, after carrying out the amendment regarding boundaries of the suit property, neither the character of the suit nor the appeal suit would be affected. further, the respondent had not produced any subsequent documents or created documents or fabricated documents in order to carry out the amendment regarding boundaries. the amendment regarding boundaries is to be carried out only on the basis of sale certificate, which had been issued by the district munsif court. further, if the amendment, regarding boundaries of suit properties is carried out, neither a new cause of action will arise nor a new issue has to be decided. therefore, the question of remanding the case for fresh trial does not arise. 8.on considering the facts and situation of the case and on perusing the impugned order passed in the auxiliary application in i.a.no.114 of 2004 in a.s.no.20 of 2003, this court does not find any discrepancy in the conclusions arrived at for allowing the amendment petition, with the condition to pay a sum of rs.1,000/- as costs to the revision petitioner herein. as such, the above revision does not have enough force to allow it. this court directs the subordinate judge, ponneri to dispose the appeal on merits, after carrying out the amendment regarding boundaries, within a period of three months from the date of receipt of this order. 9.in the result, the above revision is dismissed with the above observations. consequently, the order passed in i.a.no.114 of 2014 in a.s.no.20 of 2003, on the file of subordinate court, ponneri, dated 31.08.2005, is confirmed. no costs. consequently, connected miscellaneous petition is closed. 12.02.2014 ub internet :yes/no index :yes/no to 1.the subordinate court, ponneri. 2.the district munsif court, ponneri. c.s.karnan,j. ub pre-delivery order made in c.r.p.no.531 of 2007 and m.p.no.2 of 2007 12.02.2014
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.02.2014 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.R.P.No.531 of 2007 and M.P.No.2 of 2007 Savithri Ammal ..Petitioner versus M.A.Gopal Naidu ..Respondent Prayer: Civil Revision Petition has been filed under Section 115 of the Civil Procedure Code, against the Fair and Decreetal Order dated 22.08.2005 and the consequential order dated 31.08.2005 passed in I.A.No.114 of 2004 in A.S.No.20 of 2003 on the file of the Subordinate Court, Ponneri.

For Petitioner : Mr.N.R.Anantha Rama Krishnan For Respondent : Mr.V.Chandrakanthan **** ORDER

The respondent herein / plaintiff has filed a Civil Suit in O.S.No.424 of 1983, on the file of District Munsif Court, Ponneri against the revision petitioner herein / defendant to grant permanent injunction against the defendant, her men, agents and servants from interfering with the peaceful possession of the plaintiff and enjoyment of suit property.

2.The revision petitioner herein / defendant had filed a written statement and resisted the said suit.

After contest, the suit was dismissed.

Against the dismissal of the said suit, the plaintiff has filed the above appeal in A.S.No.20 of 2003, on the file of Sub Court, Ponneri and challenged the trial Courts judgment and decree passed in O.S.No.424 of 1983, by the District Munsif, Ponneri.

Under the circumstances, the plaintiff / respondent herein has filed an auxiliary application in I.A.No.114 of 2004 in A.S.No.20 of 2003, stating that he had purchased the suit schedule mentioned property in the Court auction on 30.03.1982 and also take delivery of the property through Court on 31.04.1983.

Since the revision petitioner herein / defendant had attempted to interfere with the peaceful possession of the plaintiff, the plaintiff was constrained to file a suit for permanent injunction before the District Munsif Court, Ponneri.

In the said suit in O.S.No.424 of 1983, the particulars regarding boundaries of scheduled mentioned properties has been typed incorrectly and inadvertently.

The same had not been noticed by the plaintiff till the disposal of the suit.

After seeing the judgment and decree passed in the said suit, the respondent came to know about the incorrect particulars of the scheduled mentioned properties.

The defendant had also not pointed out the clerical error in typing the boundaries.

Hence, the respondent herein has filed the auxiliary application in I.A.No.114 of 2004 to carry out the amendment.

3.The revision petitioner herein had filed a counter statement in the said amendment petition and resisted the same.

The respondent pointed out that in the proposed amendment, the entire boundaries are substituted and altogether a new property is introduced and as such, such amendment cannot be allowed.

Besides, the proposed amendment changes the entire cause of action and also affects the character of the suit.

Further, the suit has been filed in the year 1983 and after a long delay, the miscellaneous petition has been filed for amendment.

4.On considering the averments of both parties and on hearing the arguments of the learned counsel on either side, the Subordinate Judge was pleased to allow the said amendment application in I.A.No.114 of 2004 in A.S.No.20 of 2003, on condition that the respondent herein shall pay a sum of Rs.1,000/- on or before 30.08.2005, since the delay had been caused for filing the said application.

5.Against the said order passed in the auxiliary application, the defendant has filed the above revision and has challenged the impugned order passed by the Subordinate Judge.

The highly competent counsel Mr.N.R.Anantha Rama Krishnan submits that the respondent has filed a civil suit in O.S.No.424 of 1983, against the revision petitioner for permanent injunction.

As such, he has to mention the description of the property and define the boundaries properly.

It was not done and as such the suit itself is not maintainable since the plaint had carried incorrect particulars of the schedule mentioned properties.

Further, the decree has been passed in the year 2005 but the appeal has been filed in the year 2003, along with the amendment petition in I.A.No.114 of 2004.

As such, there is a long delay in filing the said auxiliary application i.e.Amendment petition in I.A.No.114 of 2004 in A.S.No.20 of 2003.

Further, if the plaintiff is the owner of the property, he should be very well aware of the boundaries of the plaint scheduled properties.

Further, the proposed amendment substituting an altogether near property in place of the suit property would necessitate fresh trial, which would cause further delay in the process of law.

Further, if the proposed amendment is carried out, the matter would have to be remanded to the trial Court and as such, the revision petitioner would be directed to file additional written statement and also to obtain additional documents and records in respect of the substituted property.

Further, the decree and judgment passed in O.S.No.424 of 1983, by the trial Court was on merits after full trial.

Further, if the amendment is carried out, the character of the suit will be affected and the original cause of action will be changed.

The very competent counsel further submits that the plaintiff had not produced parent documents of the suit property.

Hence, the learned counsel entreats the Court to set aside the impugned order passed in the interlocutory application by the Subordinate Judge, Ponneri.

6.The highly competent counsel for the respondent herein / plaintiff vehemently argued that the plaintiff had not created any new documents to rectify the typographical error regarding the plaint scheduled property.

Actually the respondent had purchased the suit schedule mentioned property in the Court Public auction held on 31.03.1982 and the auction sale has also been confined by the learned District Munsif Court, Ponneri on 31.03.1983.

Further, the property was delivered on 30.04.1983.

From the date of delivery of the property, the respondent herein is enjoying the same without any interference.

After sometime, the revision petitioner had made an attempt to interfere with the suit property.

Hence, the respondent had filed the Civil Suit to prevent wrong entry of defendant.

The plaintiff had received a sale certificate and delivery receipt from the Court on 31.03.1982 and 30.04.1983 respectively.

The sale certificate was issued by the District Munsif Court, Ponneri and as such there is no encumbrance or incorrect description of the plaint schedule mentioned property.

The amendment to be carried out is with regard to the boundaries on the basis of original sale certificate and as such the character of the suit or the nature of the property would not be changed and the revision petitioner's rights will not be prejudiced in any manner.

7.The highly competent counsel further submits that the plaintiff has got right to file an appeal against the decree and judgment passed by the District Munsif, Ponneri in O.S.No.424 of 1983 in order to establish his civil rights before the Subordinate Court, Ponneri, as he is the appellate authority to determine the irregularities and illegalities committed by the trial Court, in his judgment.

Therefore, the appeal suit has been taken on file by the Subordinate Judge, Ponneri.

If the appeal suit is decided on merits, after carrying out the amendment regarding boundaries of the suit property, neither the character of the suit nor the appeal suit would be affected.

Further, the respondent had not produced any subsequent documents or created documents or fabricated documents in order to carry out the amendment regarding boundaries.

The amendment regarding boundaries is to be carried out only on the basis of sale certificate, which had been issued by the District Munsif Court.

Further, if the amendment, regarding boundaries of suit properties is carried out, neither a new cause of action will arise nor a new issue has to be decided.

Therefore, the question of remanding the case for fresh trial does not arise.

8.On considering the facts and situation of the case and on perusing the impugned order passed in the auxiliary application in I.A.No.114 of 2004 in A.S.No.20 of 2003, this Court does not find any discrepancy in the conclusions arrived at for allowing the amendment petition, with the condition to pay a sum of Rs.1,000/- as costs to the revision petitioner herein.

As such, the above revision does not have enough force to allow it.

This Court directs the Subordinate Judge, Ponneri to dispose the appeal on merits, after carrying out the amendment regarding boundaries, within a period of three months from the date of receipt of this order.

9.In the result, the above revision is dismissed with the above observations.

Consequently, the order passed in I.A.No.114 of 2014 in A.S.No.20 of 2003, on the file of Subordinate Court, Ponneri, dated 31.08.2005, is confirmed.

No costs.

Consequently, connected miscellaneous petition is closed.

12.02.2014 ub Internet :Yes/No Index :Yes/No To 1.The Subordinate Court, Ponneri.

2.The District Munsif Court, Ponneri.

C.S.KARNAN,J.

ub Pre-delivery order made in C.R.P.No.531 of 2007 and M.P.No.2 of 2007 12.02.2014