CRP NPD/1677/2006 of M.SHANMUGASUNDARAM, Vs K.LAKSHMI, on 23 December 2008

O R D E R

This Civil Revision petition arises out of an order by whichan application for amendment of the preliminary decree was dismissed bythe trial Court.

2. Heard Mr.T.M.Hariharan, learned counsel for the petitionerand Mr.A.M.Mohan, learned counsel for the respondents.

3. The petitioner filed O.S.NO.369 of 1998 on the file of thePrincipal Sub Court, Coimbatore for partition and separate possession.The first respondent who is the mother of the petitioner, respondents 2and 3 who are brothers of the petitioner and respondents 4 and 5 who aresisters of the petitioner, submitted to the decree. Therefore, apreliminary decree was passed in the suit declaring the right of thepetitioner to 1/4th share in two items of properties described in theplaint schedule.

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4. In the final decree application, I.A.No.1364/2001 therespondents took out an application for appointment of Commissioner. TheCommissioner was appointed and he submitted a report. In the meantime,the petitioner filed an application for amendment of the preliminarydecree in I.A.No.2657 of 2003. The only amendment sought for by thepetitioner was to include the measurement and boundaries of suit itemNo.1 of the property. But the Court below dismissed the application foramendment on the ground that it will change the character of the suit.It is against this order that the petitioner is before this Court.

5. As stated earlier, the only amendment sought for by thepetitioner is to include the measurement of all four sides and theboundaries relating to item No.1 of the suit schedule properties. ItemNo.1 of the suit schedule property was originally described in theplaint only with two door numbers viz. 166 and 166A with the name of thestreet and the locality and the electricity service connection and waterservice connection No measurements and no boundaries were given.Therefore, under normal circumstances, the application for amendmentdeserves to be allowed.

6. However, it is stated in this case that one portion of thelarger extent of item No.1 of the property was earmarked and sold in1984 and that by way of amendment, the petitioner sought to include theportions sold also within item No.1 of suit schedule. Unfortunately, therespondents have not made such an objection very clear from the counterfiled by them. In such circumstances, the petitioner also feignsignorance of such a sale.

7. From the rival contentions, regarding the sale of a portionof item No.1 of the suit schedule properties, it is clear that there isa dispute with regard to the actual extent and boundaries of DoorNos.166 and 166A in Raju Naidu Street, Tatabad, Coimbatore. But, sinceit is not borne out by the pleadings of the parties, I am of theconsidered view that this application for amendment should be remandedback to the trial Court for a fresh disposal. There cannot be anobjection to the simple inclusion of the actual measurements andboundaries of Door Nos.166 and 166A of Raju Naidu Street which isalready described in Item No.1 of plaint schedule. But, under the guiseof seeking such an amendment, some other property sold long before thesuit, cannot also be included within item No.1, just by including largermeasurements and boundaries. Since the facts relating to sale ordivision of the properties are not borne out either by pleadings or byrecords, the Civil Revision Petition is allowed, the order of Courtbelow dated 14.7.2005 in I.A.No.2671 of 2003 is set aside. I.A.No. 2671of 2003 is remanded back to the Court below for a fresh disposal. It isopen to the parties to file additional pleadings giving clearparticulars and the Court below is directed to take such additional pleadings into account and pass fresh orders on the application anddispose of it within a period of three months from the date of receiptof a copy of this order. No costs. Consequently, connected M.Ps. areclosed.

Sd/Asst.Registrar/true copy/Sub Asst.RegistrarVJYToFirst Additional District Munsif, Coimbatore.1 cc To Mr.A.M.Mohan, Advocate, SR.72349.1 cc To Mr.T.M.Hariharan, Advocate, SR.72191. CRP.NPD.NO.1677 of 2006 andconnected M.ps. RJ(CO)RVL 12.01.2009