Nagammal and another vs Vasantha

Nainar Sundaram, J.—Defendants 6 and 9 in O.S. No. 812 of 1973 on the file of the Principal District Munsif of Poonamallee, are the

petitioners in this revision. The respondent herein is the plaintiff. The suit is one for partition. A preliminary decree was passed on 31st April, 1965

and I.A. No. 1156 of 1965 was taken out by the plaintiff to pass a final decree. On obtaining the Commissioner''s report, the division of ''A''

schedule properties, which originally consisted of eight items, could not be effectuated, because the Commissioner found mistakes in the

description of the items, Hence, a final decree was passed only in respect of ''C'' schedule properties, leaving open the question of division of ''A''

schedule properties to a later stage. The plaintiff took out two applications, one I.A. 1520 of 1974 and another I.A. 2096 of 1978, for amendment

of the plaint and consequentially the preliminary decree, seeking to bring in four more items to ''A'' schedule properties as items 9 to 12, besides

other corrections. The defendants contested those applications mainly taking a technical objection that after the passing of the preliminary decree,

there could not be bringing in of any more items and the consequential amendment of the preliminary decree. This technical objection was

overruled and those Applications were allowed. The was no adjudication on the merits of the case of the parties with regard to these new items. It

is admitted that the plaint as such was not amended; amended copies of the plaint were not served on the defendants; the defendants were not

given an opportunity to controvert the amended pleas in the plaint with reference to the new items brought in by filing any additional written

statement, and stating their case as to the availability or otherwise of these new items for partition; no additional issues were raised; no adjudication

given over this controversy and the preliminary decree was not amended after such resolution of the controversy. What seemed to have happened

is that amendments in the preliminary decree were straightway carried out. On facts, it must be stated that such a process is unknown to

substantive law as well as the procedural one. The normal process got short-circuited, practically abrogating valuable rights of the defendants. It is

needless to point out that the process adopted wholly lacked jurisdiction and the amendments incorporated in the preliminary decree with regard to

the new items are wholly unsustainable. The matter could not fall within the category of clerical or arithmetical mistakes or errors arising from any

accidental slip or omission to warrant correction or amendment of the decree only. Equally so, it is not a case of any patent defect or error in any

proceeding. Hence, the amendments incorporated in the preliminary decree without amending the plaint and trying the cause as per the amended

pleas regarding these four items 9 to 12, were patently illegal and cannot be allowed to stand. Fortunately for the defendants, an opportunity

presented itself to them subsequently, when the plaint was amended and they hastened to agitate for their right to file an additional written statement

to have the illegal and irregular process, which has preceded, set aright, as could be seen from the facts which transpired subsequently. The matter

rested there for some time and in 1980, I.A. No 380 of 1980 was taken out by the plaintiff for passing a final decree. In this application, a

substantial contention was raised that there had been no amendment of the plaint as such, affording an opportunity to the defendants to file an

additional written statement with reference to these four new items added on. It is admitted that subsequently the plaint ''A'' schedule itself was

amended with reference to these four new items and amended copy of the plaint was filed into court. At this stage and on the basis of the amended

plaint, the defendants sought permission to file an additional written statement and by order, dated 5th December, 1981 in I.A. 30 of 1980, the

court below declined to accord the sanction and this revision is directed against the said order of the court below.

Mr. T.R. Ramachandran, learned counsel appearing for the petitioners, would submit that his clients'' grievances are only with regard to the new

items and when four new items have been brought into the ''A'' schedule proportion as items 9 to 12 and since the plaint has been amended only

now, the defendants are entitled to file an additional written statement, controverting the tenability of seeking partition of these four new items, and

the denial of an opportunity in this regard by the Court below is unsustainable. Learned counsel further points out that the bare amendments

straightway incorporated in the preliminary decree without amending the plaint, are wholly without jurisdiction and against law and that it need not

stand in the way of this Court granting the appropriate reliefs in the interests of justice and equity. An overall appraisal of the facts of the case

compels me to sustain the submissions of the learned counsel. Admittedly, there had been to amendment of the plaint ''A'' schedule as required by

the plaintiff ; and in implementation of the orders passed in I.A. 1520 of 1974 and I.A. 2096 of 1978, straightway the preliminary decree seemed

to have been amended. There had been no testing of the merits of the case of the parties with reference to these four new items brought into ''A''

schedule properties. In this view, the amendments incorporated in the preliminary decree must be held to be without jurisdiction and I have already

given above the reasons therefor. It is fundamental that where a pleading is allowed to be amended, an opportunity should be afforded to the

opposite party to meet the new case by filing any additional statement, and there should be a further testing of the case of the parties on the

amended pleadings. As stated above, the plaint was amended only subsequently and the defendants coveted permission to file an additional written

statement. The fact that even anterior to the amendment of the plaint and the adherence to the legal process pursuant thereto, there was an

amendment of the preliminary decree, is of no legal consequence at all. Instead of the amendment to the preliminary decree following the

amendment of the plaint and adjudication of such amended pleadings, the position has been reversed and grave hardship and injustice have

resulted to the defendants, by this unorthodox, illegal and highly irregular process. When the matter is brought to the notice of this Court in revision,

I do not think there is any impediment in ignoring these amendments tarried out to the preliminary decree and issuing the appropriate directions to

set right the matters so that the proceedings could be not only in tune with law, but also with the principles of justice and equity. The powers under

S. 115 , C.P.C. are intended to be exercised with a view to subserve the ends of justice and technicalities need not stand in its way. I am inclined

to interfere in revision, since substantial injustice has been rendered to the defendants by the process adopted by the court below. In view of the

exceptional facts and circumstances of the case, it will not be proper to put against the defendants their laches, if any, in not attacking the earlier

amendments incorporated in the preliminary decree, which I view, as one done without jurisdiction. If the present order under revision is set aside,

the result is, the defendants will have to file an additional written statement as asked for by them, and only after the matter is tested as per the

amended pleadings, there may be a warrant for amending the preliminary decree on the basis of which alone final decree proceedings could be

prosecuted. Consequently, the amendments earlier incorporated in the preliminary decree pursuant to the orders passed in I.A. Nos. 1520 of

1974 and 2097 of 1978, as regards the new items 9 to 12, are concerned, will have to be ignored and the contentions of the parties will have to

be settled afresh. Otherwise, the allowing of this revision will be meaningless and ineffectual. This is the only way to work out the rights of the

parties.

For all the above reasons, the revision is allowed, and I direct that the amendments carried out to the preliminary decree, introducing items 9 to

12 to ''A'' schedule properties pursuant to the orders in I.A. Nos. 1520 of 1974 and 2096 of 1978 will stand deleted in respect of the aforesaid

four items, and the petitioners-defendants 6 and 9 will be afforded an opportunity by the court below to file an additional written statement to the

amended plaint in respect of these four new items added on, and after the contentions of the parties are adjudicated on the amended and additional

pleadings, raising additional issues, if any, the court below will consider the propriety or otherwise of amending the preliminary decree and after

such decision, and following all the requisite process pursuant there to, the court below will permit the plaintiff to prosecute the final decree

proceedings. There will be no order as to costs in this revision. The Court below will keep in mind that the suit is of the year 1963 and the requisite

processes, as indicated above, will be prosecuted expeditiously without any delay. Learned counsel representing the parties also assure that no

undue adjournments will be taken in the prosecution of the proceedings before the court below.