RAMASAMI UDAYAR Vs. KAMATCHI AMMAL AND ORS.

JUDGEMENT

(1.) The civil revision petition is directed against the order in I.A. No. 1752 of 1984 in O.S. No. 269 of 1975 on the file of the District Munsif, Kallakurichi.

(2.) Short facts are: One Narayana Udayar filed a suit for partition against the revision petitioner and the third respondent. Later, the said Narayana Udayar died and respondents 1 and 2 as plaintiffs 2 and 3 further prosecuted the suit. Preliminary decree was passed on 2.12.1980. Then, the plaintiffs filed a petition for passing of final decree. An Advocate-Commissioner was appointed for suggesting the modes of division and he had inspected the properties and filed his report. In his report, he has stated that item 2 in the preliminary decree viz., Survey No. 145/15 was not available on the ground. Then, final decree was passed on 17.2.1982. Later, the plaintiffs filed I.A. No. 1752 of 1984 for amendment of plaint with regard to item 2 of the plaint schedule. The amendment sought for was for deleting survey No. 147/15 and substituting survey No. 145/5. That was resisted by the revision petitioner. After enquiry, the learned District Munsif had allowed the petition. Aggrieved by that order, the first respondent in the Court below has come forward with this revision petition.

(3.) Mr. R. Arvind, learned Counsel appearing for the revision petitioner, would submit that the petition itself was not maintainable inasmuch as the preliminary decree and the final decree were already passed and the Court has become functus officio and thereafter, the Court cannot entertain the application for amendment of the plaint. He would further submit that the Court below had accepted the reason that it was a typographical error and allowed the amendment and no explanation was given as to how this typographical error had crept in and in the absence of such explanation, the petition ought not to have been allowed by the Court below. Per contra, Mr. R. Nandakumar, learned Counsel appearing for the respondents would submit that item 2 is part of survey No. 147/5 and item 1 also was part of survey No. 145/5, that boundaries given with regard to item No. 2 remains the same and was not altered and only the survey number situated within those stated boundaries was wrongly given and hence, it was corrected by virtue of amendment and that would amount to not changing the subject matter of the suit but the subject matter remains the same.