1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.11.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION (PD)(MD)No.2179 of 2011 and MISCELLANEOUS PETITION (MD)No.1 of 2011 1.Kaliannan 2.Chandrasekar .. Petitioners / Plaintiffs Vs. Kaliammal (died) A.Masilamani .. Respondent / Defendant Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 02.08.2011 passed in Interlocutory Application No.647 of 2011 in Original Suit No.348 of 1996 by the Additional District Munsif Court, Karur. For Petitioners : Mr.N.Shanmugaselvam For Respondents : Mr.V.Meenakshisundaram for Mr.M.Vallinayagam ORDER The order dated 02.08.2011 passed in Interlocutory Application No.647 of 2011 in Original Suit No.348 of 1996 by the Additional District Munsif Court, Karur is being challenged in the present Civil Revision Petition. 2. The revision petitioners herein as plaintiffs have instituted Original Suit No.348 of 1996 on the file of the Court below for the reliefs of perpetual injunction in respect of the suit 'A' and 'B' schedule properties. During pendency of the same, the present petition has been filed by the revision petitioners/plaintiffs as petitioners in Interlocutory Application No.647 of 2011 under Order VI, Rule 17 of the Code of Civil Procedure, 1908 praying to permit them to make amendments in the plaint as set out in the petition. The Court below has dismissed the same. Against the dismissal order, the present Civil Revision Petition has been preferred at the instance of the petitioners/ plaintiffs as revision petitioners. 3. The learned counsel appearing for the revision petitioners has contended that in the written statement filed on the side of the respondents, it has been stated that the plaintiffs are not having title to the suit properties and further the plaintiffs have filed the present suit on the basis of the Will mentioned in the plaint and in the Will mentioned in the plaint, totally three items of properties have been dealt with and under the said circumstances the relief of declaration has to be sought for in the plaint and also the 'A' schedule property mentioned in the Will must also be included and further the Will relied upon by the defendants is not the last Will of the testator and to that effect declaratory relief has to be sought for and further the another Will relied upon by the defendants https://hcservices.ecourts.gov.in/hcservices/ 2 is liable to be declared as null and void and under the said circumstances the present petition has been filed, but the Court below has erroneously dismissed the petition and therefore the dismissal order passed by the Court below is liable to be interfered with. 4. The learned counsel appearing for the respondents has contended that the second plaintiff as plaintiff has instituted Original Suit No.664 of 2006 on the file of the District Munsif Court, Karur, wherein the deceased defendant viz., Kaliammal has been shown as first defendant and in Original Suit No.664 of 2006, a detailed written statement has been filed on 11.01.2007, wherein it has been clearly stated that the plaintiff is not having title to the suit properties mentioned therein and since a clear denial has been made with regard to the alleged title of the plaintiff therein on 11.01.2007, the present petition for including the relief of declaration is barred by limitation and further by way of amendment, the plaintiffs have tried to include the suit 'C' schedule property in respect of which no cause of action has arisen on the date of filing of Original Suit No.348 of 1996 and the Court below after considering all the contentions raised on either side has rightly dismissed the petition filed in Interlocutory Application No.647 of 2011 and therefore the order passed by the Court below is perfectly correct and the same need not be set aside. 5. For considering the rival submissions made on either side, the Court has to look into the description of suit properties mentioned in the plaint filed in Original Suit No.348 of 1996 and also the nature of amendments sought to be introduced by way of filing the present petition. In the plaint filed in Original Suit No.348 of 1996, two items of properties have been shown as suit properties. The first plaintiff has sought the relief of permanent injunction in respect of the suit 'A' schedule property and the second plaintiff has sought the relief of permanent injunction in respect of the suit 'B' schedule property. In the present petition, a declaratory relief has been introduced in favour of the first plaintiff with regard to suit 'A' schedule property. Another declaratory relief has been introduced in favour of the second plaintiff with regard to suit 'B' schedule property. Further a declaratory relief has been introduced to the effect to declare that the 'A' schedule mentioned in the Will is the absolute property of the second plaintiff. Yet another declaratory relief has been sought for with regard to the Will dated 23.11.1983. Another declaratory relief has been sought for with regard to the Will dated 03.01.2008, which has been executed by the original defendant in favour of the second defendant. 6. The main defence putforth on the side of the respondents is that the second plaintiff in the present suit has already filed Original Suit No.664 of 2006 against the first defendant herein and she filed a detailed written statement, wherein she has denied the https://hcservices.ecourts.gov.in/hcservices/ 3 title of the plaintiff mentioned therein even on 11.01.2007. 7. As adverted to earlier, the relief of injunction has been sought for in respect of the suit 'B' schedule property in favour of the second plaintiff, viz., Chandrasekaran. The very same Chandrasekaran as plaintiff has instituted Original Suit No.664 of 2006, wherein a detailed written statement has been filed on 11.01.2007, in which the title of the plaintiff has been clearly denied. 8. In the present petition, relief of declaration has been mentioned. Considering the fact that the relief of declaration has been introduced in the present petition by way of amendment, the Court has to look into Article 58 of the Limitation Act, 1963 and the same reads as follows: Description of suit Period of limitation Time from which period begins to run 58. To obtain any other declaration. Three years When the right to sue first accrues. 9. From a cursory look of the provision of the said Article, it is made clear that a declaratory suit should be filed within a period of three years, when the right to sue first accrues. In the instant case, the second plaintiff as plaintiff has already instituted Original Suit No.664 of 2006, wherein the deceased defendant viz., Kaliammal has been shown as first defendant and she filed a detailed written statement on 11.01.2007, wherein it has been clearly stated that the plaintiff is not the owner of the suit property. Therefore a candid denial has been made with regard to alleged title of the plaintiff in Original Suit No.664 of 2006. Since the written statement has been filed on 11.01.2007 and the present petition has been filed on 14.07.2011, it is needless to say that the relief of declaration sought to be introduced in the plaint in respect of the suit 'B' schedule property is clearly barred by limitation and therefore the proposed amendment sought to be introduced in respect of the suit 'B' schedule property cannot be granted. 10. Now the Court has to look into the declaratory relief sought to be introduced in respect of the suit 'A' schedule property in favour of the first plaintiff. The learned counsel appearing for the revision petitioners has candidly admitted that in respect of the suit 'A' schedule property, a Will has been executed in favour of the defendant as well as first plaintiff, wherein the suit 'A' schedule property has been given to the first plaintiff. Since the clear admission made on the side of the respondents is to the effect that by virtue of the Will, the first plaintiff is having title to the suit 'A' schedule property for the purpose of declaring his right with regard to suit 'A' schedule property, the proposed amendment can be allowed and further the suit 'A' schedule property is not one of https://hcservices.ecourts.gov.in/hcservices/ 4 the suit properties in Original Suit No.664 of 2006 nor the first plaintiff is a party to that suit. Therefore the relief of declaration sought to be introduced in respect of the suit 'A' schedule property can easily be allowed. 11. Now the Court has to look into the other proposed amendments sought to be introduced in the present petition. The other proposed amendments are to include 'A' schedule property mentioned in the Will dated 20.08.1984 as suit 'C' schedule property and also to include declaration to the effect that the Will dated 23.11.1983 is not the last Will of the testator and also to introduce the relief of declaration to the effect that the Will dated 03.01.2008 is invalid. Since no cause of action has arisen with regard to the proposed suit 'C' schedule property and since the plaintiffs have filed the present suit on the basis of the Will dated 20.08.1984 and since the defendant has set up her defence as per Will dated 23.11.1983 and also as per Will dated 03.01.2008, the proposed amendments sought for in the petition as 'C', 'D' and 'E' need not be necessary for the purpose of deciding the present lis between the parties. Therefore the present petition is liable to be dismissed with regard to the nature of amendments sought for as 'B' to 'E' and the present petition can be allowed only in respect of the proposed amendment mentioned as 'A' and to that extent the present Civil Revision Petition can be allowed in part. 12. In fine, this Civil Revision Petition is allowed in part without costs and the order passed in Interlocutory Application No.647 of 2011 in Original Suit No.348 of 1996 by the Additional District Munsif Court, Karur is modified as follows: The petition filed in Interlocutory Application No.647 of 2011 in Original Suit No.348 of 1996 is allowed in part without costs only in respect of the proposed amendment, which is mentioned as 'A'. In respect of the other amendments, the dismissal order passed by the Additional District Munsif Court, Karur is confirmed. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(A.S) /True Copy/ Sub Assistant Registrar To The Additional District Munsif, Karur. +1cc to MR.V.Shanmuga Selvam, Advocate, Sr.No.42117 +1cc to Mr.M.Vallinayagam, Advocate, Sr.No.42112 C.R.P(PD)(MD)No.2179 of 2011 and M.P(MD)No.1 of 2011 smn SMA/13.12.2011/4C/4P https://hcservices.ecourts.gov.in/hcservices/