JALA VIJAYACHANDRIKA Vs. R LAKSHMIKUMARI

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S.No.206 of 2010 and the petitioner in I.A.No.880 of 2012 and respondents are the defendants in the suit and respondents in the above said application.

(2.) The petitioner filed suit against the respondents in O.S.No.206 of 2010 on the file of the Subordinate Court, Poonamallee, for partition and separate possession of 1/5th in the suit property. In the said suit, after trial, the petitioner had filed application in I.A.No.880 of 2012 under Order 6 Rule 17 CPC to amend the plaint. The said petition was dismissed by the trial court. Challenging the said order passed by the trial court in I.A.No.880 of 2012, the Revision Petitioner is before this court.

(3.) The learned counsel for the petitioner would submit that though the petitioner filed suit for partition, during the pendency of the suit, the matter was settled between the parties out of the court and also they entered into a memorandum of understanding viz., Partition agreement on 09.06.2011 and therefore, the petitioner wanted to amend the plaint based on the terms of the agreement entered into between the parties in the memorandum of understanding of Partition Agreement. The said application for amendment is numbered as I.A.No.880 of 2012. In the order dated 07.12.2012, in page 2 of the order, it is stated that "the petitioner has filed unnumbered application to amend the plaint regarding memorandum of understanding alleged to have been executed between her and the defendants on 09.06.2011 i.e., subsequent to the suit", which showed non application of mind on the part of the learned Judge and passed the said order. Further, it is submitted that while dealing with the said application to amend the plaint under Order 6 Rule 17 CPC, the court should not go into the merits of the case and it should only consider the averment made in the affidavit and pass the order. The order shows that the learned Judge gone into the merits of the case, which wants interference of this court. In support of his contentions, he has placed reliance on the Full Bench decision of this court in the case of Hi.Sheet Industries .Vs . Litelon Limited, 2006 5 CTC 609 and also Judgment of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal and others Vs. K.K.Modi and others, 2006 4 SCC 385 The learned counsel for the petitioner submitted that therefore, the order passed by the trial Judge required interference of this court.