SELLAMMAL NOW DECEASED Vs. M NATESAN

JUDGEMENT

(1.) THIS revision is against the order allowing the amendment of plaint.

(2.) THE properties originally belonged to one S.K.Marimuthu Pillai who died in 1973. He had three sons. THEre is a third son. One son is the respondent, the other son was one Rathinam and the petitioners are his wife and three sons. THE respondent filed O.S.No.93 of 1991 for bare injunction. It has now been renumbered as O.S.No.448 of 1991. THE respondent claimed to be in possession of the suit property pursuant to a registered release deed dated 20.4.1982 executed by his brother Rathinam as guardian of his minor sons and the 2nd petitioner herein, the major son. Of course, these details were not spelt out in the plaint originally. In May, 1990, when the petitioners came to know of this release deed, they issued a notice demanding partition on 13.5.1990. THEy also filed a suit for partition in O.S.No.691 of 1991 on 17.7.1991. THE respondent was served but did not file his written statement and an ex parte decree was passed in the partition suit on 21.12.1992. THE application to set aside the ex parte decree was dismissed and this has been confirmed in revision. THErefore, the ex parte preliminary decree for partition has become final. It appears that the respondent has subsequently filed another suit for declaration that the decree obtained in the partition suit is vititated by fraud. This suit is pending. THEreafter the petitioner filed I.A.No.478 of 2002 for amendment of plaint deleting the original paragraphs 3 and 4 and substituting them with new paragraphs which according to the respondent clarify the position and also added the relief of declaration. It is against the order passed allowing the amendment, this revision has been filed.

(3.) AS regards the question of limitation, learned counsel relied on Ragu Thilak D.John v. S.Rayappan Ragu Thilak D.John v. S.Rayappan Ragu Thilak D.John v. S.Rayappan A.I.R. 2001 S.C. 699 and submitted that the issue of limitation could be raised after allowing the amendment and since the plea of limitation being disputed could always be made, the subject matter of the issue has to be decided as held by Supreme Court in the above decision. Reliance was also placed on Jayabaskar, P. v. Saraswathi Jayabaskar, P. v. Saraswathi Jayabaskar, P. v. Saraswathi (2001)2 C.T.C. 334, where it was held that even after the amendment related back to the date of the plaint if the claim is already barred, that can always be decided by the trial Court and unless the discretion in allowing the application for amendment is found to be illegal or capricious, ordinarily under Sec.115, C.P.C., this Court will not interfere.