IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.12.2008 CORAM THE HONOURABLE MR. JUSTICE M. VENUGOPAL C.R.P. PD. No.1534 of 2008 and M.P.No. 1 of 2008 Mohideen Sheriff .. Petitioner 2nd Respondent(2nd Defendant ) Versus 1. K. Khul Mohamed 2. K. Johnthara Begam 3. K. Noor Mohamed 4. K. Siddik 5. K. Avizha Begam 6. K. Kuthus 7. K. Kurshith Begam 8. A. Azlam Basha 9. A. Ashrap Basha 10. A. Bazil Basha 11. A. Akbar Basha 12. A. Shamshed Begam 13. A. Shanavas Begam 14. A. Noor John 15. A. Sailabulla Khan 16. A. John Begam 17. B. Mohamed Rafi 18. B. Mohamed Shafi 19. B. Nasrudeen 20. B. Bhasulddeen 21. B. Abdul Baddar 22. B. Rajia Begam 23. B. Phamitha Begam 24. A.J. Alia Begam 25. A.J. Nazar Basha 26. A.J.Mohamed Yusuf 27. A.J. Jilani Basha 28. A.J.Mohamed Sulaiman 29. A.J.Mohamed Musthafa https://hcservices.ecourts.gov.in/hcservices/ 30. A.J.Najitha Begum 31. A.Jabeen Begum 32. A.J.Shajitha Begum 33. A.J.Abitha Begum 34. A.J.Rahitha Begum 35. A.Majitha Begum 36. A. Ayisha Begum 37. A. Altab Ahmed 38. A. Asma Begum 39. A. Akila Begum 40. A. Aneez Ahmed 41. A. Azia Begum 42. A. Asif Ahmed 43. A.A.Imthiyas Basha 44. A. Harun Basha 45. A. Humayun Basha 46. A. Zaheer Basha 47. A. Mubarak Basha 48. Nazim Banu 49. Noorjahan 50. Minor Mohammed Nafeel 51. Minor Irwana Farhat ( Minor respondents 50 and 51 represented by next friend Mother Noorjahan) 52. T. Mustaq Sheriff 53. Mahaboob Sheriff 54. Sardar Sheriff 55. Ismail Sheriff 56. Malika Begam 57. Chan Begam 58. The Salem Municipal Corporation by its Commissioner, Salem. 59. A. Rabia Begum 60. A. Mohammed Sultan 61. A. Munavar Basha 62. Nusrat Begam .. Respondents (Petitioners 1-3,5-8, 10-36, 38-54 & Respondents 1,3-5,7,8 10-14 Plaintiffs 1-3,5-8,10-36, 38-54 Defendants 1,3-5,7-8,10-14) (Respondents 52 to 62 given up as unnecessary parties) The Civil Revision Petition has been filed under Article 227 of Constitution of India against the order dated 09.11.2006 passed in I.A.No.514 of 2006 in O.S.No.983 of 2004 on the file of the II Additional District Munsif Court, Salem. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : M/s. T. Murugamanikkam For Respondents 1 to 51: Mr. A.P.Srinivas Respondents 52 to 62 : Given up. ORDER The Civil Revision petitioner/second respondent/second defendant has filed the present Civil Revision Petition as against the order dated 09.11.2006 in I.A.No.514 of 2006 in O.S.No.983 of 2004 passed by the II Additional District Munsif, Salem in allowing the amendment application filed by the respondents/petitioners/plaintiffs filed under Order 6 Rule 17 of Civil Procedure Code praying for permission of Court to amend the plaint. 2. The trial Court while passing orders in I.A.No.514 of 2006 inter-alia opined that even in the suit T.S.No.68 is already mentioned as the suit property and now the petitioners want to include a portion in T.S.No.69 measuring 2858 sq.ft. etc., and has come to the conclusion that the title and share if any have to be decided on merits, when the suit is adjudicated upon and not in this Interlocutory Application and has resultantly allowed the application. 3. The learned counsel for the revision petitioner/second respondent/second defendant submits that the trial Court ought to have seen that the respondents/plaintiffs have no right in T.S.No.69 and this has been conclusively decided against them in S.A.No.756 of 1995 and that the trial Court has not appreciated of the fact that the proposed property sought to be included in the amendment application has already been the subject matter of partition and further that the amendment application is barred by the principles of res judicata as per the Code of Civil Procedure and this aspect of the matter has not been looked into by the trial Court in a proper perspective and therefore prays for allowing the Civil Revision Petition in furtherance of substantial cause of justice. 4. Per contra, the learned counsel for the respondents/ plaintiffs submits that the trial Court has passed the cogent and convincing order while allowing the I.A.No.514 of 2006 filed for amending the plaint and that the reasons adduced by the trial Court are proper and therefore the same need not be interfered by this Court sitting in revision. 5. It is to be noted that in the plaint, the respondents/respondents/plaintiffs have sought a relief of division of suit properties into two equal shares and allot one https://hcservices.ecourts.gov.in/hcservices/ such share to the plaintiffs etc.,. It is relevant to point out that in the description of the property T.S.No.68 is mentioned which is about 18081 sq.ft. 6. The learned counsel for the revision petitioner urges before this Court that the revision petitioner/second respondent has filed a counter to the I.A.No.514 of 2006 before the trial Court wherein, it is categorically mentioned that ' in the plaint, in paragraph 8, it is clearly stated that S.Nos.64,67 and 69 in Salem Town were divided between Nawab Sheriff and Kathijabi by a registered partition deed etc., and that the plaintiffs are now estopped from claiming S.No.69 to be included in the description of property in the same plaint, in which S.No.69 is specifically given as boundary, by this petition for amendment and therefore prays for dismissing the I.A.No.514 of 2006. 7. The learned counsel for the revision petitioner draws attention of this Court to the judgment of this Court in S.A.No.756 of 1995 dated 11.08.2000 wherein at paragraph 5, it is mentioned that 'the suit property is situated in S.No.69' and in paragraph 9, it is mentioned that of 'S.No.69 is six cents out of the entire T.S.No.826, which was the subject matter of earlier suit etc.' and contends that the respondents/plaintiffs by trying to amend the plaint, they are trying to reopen the matter which has already been decided by the Court and this cannot be done and the amendment application projected by the respondents/plaintiffs is clearly hit by the principles of res judicata. 8. Countering these submissions, the learned counsel for the respondents/plaintiffs submits that in S.A.No.756 of 1995, it is clearly mentioned that the suit is for permanent injunction and further that in the said Second Appeal Judgment, the title to properties have not been decided and therefore the principles of res judicata under Section 11 of Civil Procedure Code are not attracted in our case on hand. 9. The learned counsel for the respondents/plaintiffs relies on the decision 'Sampath Kumar ..vs.. Ayyakannu and another' of Hon'ble Supreme Court reported in " 2002(4) CTC 189 at page 191" wherein it is observed that " Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of plaintiff as amended......". https://hcservices.ecourts.gov.in/hcservices/ 10. In the Judgment of S.A.No.756 of 1995 dated 11.08.2000, the Hon'ble High Court has inter alia observed that in any event the findings of the first Appellate Judge regarding the exclusive possession of the respondent are pure questions of fact which appear to be based on correct appreciation of the oral and documentary evidence placed before the Court and consequently has dismissed the Second Appeal. 11. It is in an axiomatic fact that when a Court of Law deals with an amendment application, it is not supposed to go into the aspects of merits and demerits of a given case. Whenever, amendments are sought for and projected by parties by means of necessary applications, a Court of law has to take note of the fact that whether the real questions in controversy between the parties shall be permitted/allowed to be made. At any stage of the case, either party to a case can amend or alter his pleadings and the Court has to exercise its discretion in this behalf. 12. As far as the present case is concerned, though in the judgment of S.A. No. 756 of 1995 there is a reference to S.No.69 is six cents out of the entire T.S.No.826 and inasmuch as the suit is filed for permanent injunction in the Second Appeal and taking note of the fact that the present the suit has been filed in O.S.No.983 of 2004 for partition and since in the S.A.No. 756 of 1995 the title to the properties have not been decided, this Court is of the considered view that the trial Court has exercised its discretion in a proper way while allowing the I.A.No.514 of 2006 for amendment of plaint and looking at from any point of view, the order of the trial Court does not suffer from any serious infirmity or patent illegality and in that view of the matter, the Civil Revision Petition fails and the same is hereby dismissed. 13. In the result, the Civil Revision Petition is dismissed and the order passed by the trial Court is affirmed for the reasons assigned by this Court. It is open to the Civil Revision Petitioner/second respondent to file his subsequent pleadings or additional Written Statement as the case may be and the trial Court shall permit the revision petitioner/second respondent in https://hcservices.ecourts.gov.in/hcservices/ this regard. It is made clear that the trial Court shall proceed further in regard to the further conduct of the main suit dispassionately uninfluenced by any of the observations made by this Court in this regard. Consequently, connected Miscellaneous Petition is closed. However, there will be no orders as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mra To 1.The II Additional District Munsif, Salem. +1cc to Mr.T.Murugamanikkam, Advocate Sr 67333 +1cc to Mr.A.P.Srinivas, Advocate Sr 67174 BV(CO) km/12.12. C.R.P. PD. No.1534 of 2008 and M.P.No. 1 of 2008 https://hcservices.ecourts.gov.in/hcservices/