Dr. Manjula Jothi vs B. Kannammal and Others

M. Venugopal, J.—The Petitioner/Plaintiff has filed the present revision petition as against the order dated 17.04.2009 in I.A. No. 166 of

2009 in O.S. No. 5 of 2007 on the file of the Learned Additional District Judge cum Fast Track Judge No. I, Erode.

The trial Court while dismissing the I.A. No. 166 of2009 filed by the Revision Petitioner/Plaintiff prayed for amendment of plaint as per Order

VI Rule 17 of the CPC has among other things observed that ""the 4th and 5th Respondents are the children of the Petitioner and their father as

guardian has been conducting the suit and it is for the said father as guardian to file the amendment application and it is not for the Revision

Petitioner/Plaintiff to file the present amendment application, which is contrary to law and resultantly, dismissed the application without costs"".

Before the trial Court, in I.A. No. 166 of 2009 the Revision Petitioner/Plaintiff in paragraph-3 has inter alia observed that the Defendants 1 & 3

have on 19.11.2007projected an affidavit mentioning that they are giving up their rights and shares in the suit property, there by retiring from the

suit with a memo, which has been recorded on 28.11.2007, resulting in their civil death and further, the remaining two-third of their shares

devolved upon the Defendants 4 & 5 by the said retirement and as such, the Defendants 4 & 5 have become entitled to the two-third shares in the

suit properties, which originally belonged to Defendants 1 & 3. In this background, the Revision Petitioner/Plaintiff has sought for an amendment of

the plaint, since according to the Revision Petitioner/Plaintiff, if the application is not allowed, the same will lead to unnecessary complicating claims

by the other Defendants.

In short, the Learned Counsel for the Revision Petitioner/Plaintiff submits that the amendment sought for by the Revision Petitioner/Plaintiff has

become very necessary and by allowing the said amendment, no 5. Before the trial Court, Respondents 2 & 14 have filed a memo of counter,

wherein they have taken a categorical plea that the Revision Petitioner/Plaintiff is not entitled to claim that subsequent to the suit, if a particular

Defendant abandons right in the suit, it does not amount to transfer of right in favour of a particular party to the suit. Moreover, the property of a

living person shall not be transferred, unless bequeathed in a testament. Also a plea has been taken that the proposed amendment claiming the right

of Defendants 1 & 3 cannot be done by the Revision Petitioner/ Plaintiff for the Defendants 4 & 5, since it is the duty of the Defendants 4& 5 to

plead the right, if any. Further, it is not open to the Revision Petitioner/Plaintiff to plead for their cause and seek the proposed amendment.

Notwithstanding the fact that the Respondents 4 & 5are the Revision Petitioner''s children, for them the legal proceedings are conducted by their

Father as Guardian. In law it is for the Guardian to take care of the interest of the parties for whom he or she appears. Apart from the said

Guardian, it is not open to any other person much less the Revision Petitioner/ Plaintiff to seek for the proposed amendment as per Order VI Rule

17 of the CPC as more particularly mentioned in the said petition. Viewed in that perspective, the Revision petition fails.

In the result, the revision petition is dismissed, leaving the parties to bear their own costs. Consequently, the connected miscellaneous petition is

closed.