KUMARASAMI PILLAI Vs. PALANI

JUDGEMENT

(1.) This revision is directed against the dismissal of the application for amendment of the plaint. It is seen that the petitioner herein has filed a suit for declaration of title and for recovery of possession on the allegation that the suit property originally belonged to his mother by virtue of purchase from one Adam Sahib and she was in possession till her death which took place 50 years ago. According to him, after the demise of his mother, himself and his two brothers and two sisters were jointly enjoying the property. At the time of drafting the plaint, it was stated that after the death of his mother, he and his brothers were enjoying the property as they became entitled to the property as heir of Manickammal. He filed the suit for himself and on behalf of his brothers. In the prayer column, the declaration has to be sought for in favour of the plaintiff, his brothers and two sisters and since it is omitted to be included in the plaint, the amendment is absolutely necessary, otherwise, he will be prejudiced. He also submitted that if the amendment is not allowed, there will be several litigations and there will be multiplicity of proceedings. Hence he prayed for amendment of the plaint for including the names of his two sisters besides his two brothers as the successors after the death of his mother to the suit property.

(2.) The said application was resisted by the respondent defendant. It was contended that the suit was filed in the year 1980 and the present application for amendment was filed in 1991, after 11 years, when the suit is in the stage of part-heard. Even in the written statement filed in 1980 it has been clearly brought out to the notice of the petitioner that the present suit filed by the plaintiff was not maintainable and he alone is not entitled to the declaration sought for. Having kept quiet for 11 years, he has come forward with the application and as such the petition has to be dismissed on the ground of laches. It is stated that as per the plaint allegations, the suit property belongs to the mother of the petitioner and she died long ago and hence the petitioner ought to have impleaded all those who are entitled to share in the property. Necessary and proper parties have not been impleaded. In the plaint though the petitioner referred that the petitioner-plaintiff filed the suit for himself and on behalf of his two brothers, in the relief column it is not stated that the property belongs to the plaintiff and his two brothers. The petition for amendment of the plaint is filed only to protract the proceedings. The address of the proposed parties has not been described properly, that there is no joint family, that the petitioner cannot represent the other party and that there is no prayer to implead the proposed parties to the suit even in the petition for amendment of the plaint and as such, the petition has to be dismissed.

(3.) The trial Court dismissed the application holding that even though the petitioner-plaintiff was fully aware of the fact that his brothers and sisters are also entitled to share, he failed to take steps from the year 1981 and that the petition is liable to be dismissed on the ground of delay. It also found that it was brought in evidence that the mother died about 50 years ago and that the petitioner and his brothers have been enjoying the properties and that he has got two sisters. In the circumstances it was held that there was delay in filing the petition and consequently the petition has been dismissed. Incidentally it came to the conclusion that the petition is filed only to protract the proceedings.