KASI VISWANATHAN Vs. C KASTURI

JUDGEMENT

(1.) (Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 23.3.2004 made in I.A.No. 139 of 2003 in O.S.No. 6077 of 1999 on the file of the learned Addl. District and Sessions Judge, (FTC No.II) Chennai.) The 5th defendant in the suit has filed this revision challenging the order of the trial court in allowing the Interlocutory Application filed by the plaintiff to amend the plaint prayer to include the third item of the property in the description to schedule of the properties in the partition suit filed by her.

(2.) THE suit has been filed for partition of the suit properties and allot 1/5th of the share to the plaintiff. According to the plaintiff, the property bearing Door Nos: 26 and 27, Singachari Street, Triplicane, has been by inadvertence omitted to be included in the suit schedule of properties and if the same is not included by amending the plaint as sought for in the Interlocutory Application, she will be put to much hardship. THE 5th defendant who is the contesting party to the suit objected to the said amendment stating that after several adjournments and after completion of examination of the witnesses when the matter is posted for advancement of arguments, the said Application has been taken out only to delay the proceedings; further she has admitted that no one had been in the possession of the said property; the suit is not valued properly.

(3.) A perusal of the impugned order and the typed set of papers would show that the Interlocutory Application has been filed nearly after more than 30 adjournments and only when the matter was posted for arguments, after the witnesses have let in their oral and documentary evidence. It is also to be pointed out that even in her deposition the plaintiff admitted that neither she, nor her family members had ever asserted any right over the said III item of the property for the past 70 years. Further as per the amended provisions of the CPC, viz., Order 6, Rule 17 mandates that pleadings could be amended only to accommodate new facts that have come into existence subsequent to the institution of the suit. But the plaintiff has not stated any acceptable reason except to plead ignorance and inadvertence. Further, when the plaintiff could not assert any right in the said property and particularly, when PW.2 has clearly admitted that she has no records to establish entrustment of property by Selvapathy Chetty and kandasamy Chetty to Kandasamy Chetty, the proposed amendment to include the said property itself is preposterous and by such amendment of pleadings, she cannot withdraw the admissions made in the course of trial, which is impermissible in law.