BANUMATHI Vs. CHELLAMMAL

JUDGEMENT

(1.) The plaintiff in O.S. No. 318 of 2007 on the file of the District Munsif-cum-Judicial Magistrate Court, Uthukottai, is the revision petitioner. The revision petitioner/plaintiff filed the suit for partition of her 1/3rd share in the suit properties. In the plaint she mentioned about the settlement deed executed by her father in favour of her brother namely the 2nd defendant and giving all the properties to the 2nd defendant. Nevertheless, she did not pray for declaration that the settlement deed is not valid. The respondents/defendants also filed a statement stating that without a prayer for setting aside the settlement deed, the suit for partition will not be maintainable. Thereafter, when the case was about to be listed for trial the revision petitioner/plaintiff filed an application to amend the plaint to include the relief of declaration that the settlement deed executed by her father in favour of the 2nd defendant is null and void and also to include Para 9(a) to the effect that the settlement deed is null and void and not binding on the plaintiff and that application was rejected and aggrieved by the same this revision is filed.

(2.) It is submitted by the learned counsel for the revision petitioner that the trial has not commenced and though the revision petitioner/plaintiff mentioned about the settlement deed in the plaint, due to inadvertence she omitted to pray for declaration that the settlement deed is null and void and later on seeing the written statement, the plaintiff realized that she ought to have prayed for declaration that the settlement deed is null and void and therefore she filed the application and the Court below dismissed the said application on the ground that this application is barred by limitation. The learned counsel for the revision petitioner also relied upon the Judgment of the Hon'ble Supreme Court Pankaja and another Vs. Yellappa (D) LRs. and others, 2004 4 CTC 231 and submitted that the amendment application cannot be dismissed on the ground that the relief is barred by limitation and he also relied upon the Judgment of this Court rendered in C.R.P. (PD) NO. 3669 of 2010 dated 21.9.2011 in support of his contention.

(3.) The learned counsel for the respondents submitted that the petitioner is aware about the settlement deed and she also mentioned the same in the plaint and deliberately she omitted to include the relief of declaration in the plaint and even after reading the written statement wherein the plea was taken, the plaintiff has not come forward to amend the plaint and when the case was about to be listed for trial, the application was filed and considering the fact that the settlement deed is dated 25.11.2004 and the suit was filed in 2007 and the application for amendment was filed in 2010, the Court below rightly dismissed the application on the ground that it is clearly barred by limitation and hence the order of the Court below need not be interfered with. He also relied upon the Judgment of the Hon'ble Supreme Court Kailash Vs. Nanhku and others,, 2005 4 SCC 480 wherein the Supreme Court has stated that in a civil suit the trial begins when the issues were framed and the case is set out for recording of evidence and in this case admittedly issues were already framed and when the case was about to be listed for trial this application was filed and hence it cannot be contended that it is a pre-trial amendment. He also relied upon the Judgment of the Hon'ble Supreme Court Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others, 2009 10 SCC 84 wherein the Hon'ble Supreme Court has laid down the guide lines in the matter of amendments and as per the guidelines the amendment petition cannot be allowed and as it changes the nature and character of the suit and when the amendment is also barred by limitation on the date of application. He therefore submitted that the Court below has rightly dismissed the application.