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2007 Supreme(Mad) 6
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P. JYOTHIMANI
Kaliyaperumal & Others
Versus
Pudupettai Chokkanathaswamy & Another
C.R.P.PD.Nos.235 of 2006 & 236 of 2006 and C.M.P.Nos.1294, 1295 & 2190 of 2006
Decided On : 01-01-2007
For the Petitioners:S.K. Raghunathan, Advocate. For the Respondents:R2, Sunilkumar, Advocate.
The main legal point established is the requirement of notice to the defendants for amendments and the importance of natural justice in the amendment process.
Headnote:
Amendment - Property Dispute - Section 106 of the Transfer Property Act - [Section 106 of the Transfer Property Act] - The court discussed the amendment sought by the plaintiffs, the lack of notice to the defendants, and the denial of principles of natural justice. The court found that the amendment was not a natural consequence of the impleading petition and required notice to the defendants. The court set aside the orders and directed the Trial Court to restore the amendment application, give the defendants an opportunity to respond, and complete the trial within 6 months.
Fact of the Case:
The plaintiffs filed a suit for possession of a property and recovery of damages. The defendants challenged the validity of the notice given under Section 106 of the Transfer Property Act and filed applications for cancellation of orders and reopening the case.
Finding of the Court:
The court found that the amendment ordered without notice to the defendants was a denial of natural justice. It set aside the orders and directed the Trial Court to restore the amendment application and complete the trial within 6 months.
Issues: The issues included the lack of notice to the defendants for the ordered amendment, denial of natural justice, and the need for additional written statement and framing of additional issues.
Ratio Decidendi: The court held that the amendment was not a natural consequence of the impleading petition and required notice to the defendants. It emphasized the importance of natural justice and the right of parties to respond to amendments.
Final Decision: The court allowed the revision petitions, set aside the orders, directed the Trial Court to restore the amendment application, and complete the trial within 6 months.
The defendants are the petitioners in both the revisions, which are filed under Article 227 of the Constitution of India. The plaintiffs filed the suit in O.S.No.471 of 1992 on the file of the District Munsif, Panrutti for possession of the suit property and also for recovery of damages.
2. It is the case of the plaintiffs that the first plaintiff Pudupettai Chokanatha Swami Annathana Sathiram by its power agent N.Subramania Chettiar who subsequently died, is the owner and the defendant’s father was the tenant and after his death, defendants 1 and 2 have continued under a oral lease. Since then there was arrears of rent, notice was issued for the purpose of recovery of possession and the suit for possession was filed.
3. The defendants have also filed the written statement, of course questioning the validity of the notice given under Section 106 of the Transfer Property Act apart from many other defences. After the death of the said Subramania Chettiar, the second plaintiff, who is the second respondent in the revision S.Arunachalam has filed I.A.No.388 of 2003 to implead him to represent the plaintiff Chatram as one of the trustees stating that pending trial Subramania Chettiar, who is the father of the party sought to implead died on 27.02.2003 and on 16.03.2003 the plaintiff Annathana Sathiram has convened a meeting of Pudupettai Kovil Palayam Street residence and unanimously selected him as the trustee of Annathana Sathiram in the place of his deceased father Subramaniya Chettiar. The said application for impleading was allowed by the Trial Court on 23.06.2003.
4. Thereafter, the second respondent filed I.A.No.710 of 2003 in the suit for a permission to amend the plaint. Originally when the suit was filed N.Subramaniya Chettiar was stated to be a power agent of the trust. By the amendment sought for, the second respondent wanted to strike off the term "Power Agent" under the name of Subramaniya Chettiar and add the word "Trustee". He also sought to include paragraph No.3 in the plaint as follows:
"3) While the suit is pending trial trustee Subramania Chettiar died. Hence in the metting of Koilpalayam inhabitant of Annathanasathiram held on 16.03.2003, the 2nd plaintiff has been unanimously selected as one of the trustee of Annathanasathiram in the place of Subramania Chettiar. Hence 2nd plaintiff has been impleaded as proper and necessary party in the suit to proceed upon the trial of the suit."
5. The said amendment petition was allowed by the Trial Court without giving notice to the defendants who are the petitioner herein on 23.06.2003. It was in those circumstances, the defendants/revision petitioners have filed I.A.No.1233 of 2005 praying for cancellation of the order passed in I.A.No.710 of 2003 dated 23.06.2003. It was the said application in I.A.No.1233 of 2005 filed by the defendants/revision petitioner, dismissed by the Trial Court against which the C.R.P.No.235 of 2006 is preferred. The defendants/revision petitioners have also filed I.A.No.621 of 2005 praying for reopening the case, posted for judgments on 29.03.2005, in which the Trial Court has suomoto reopened the case for the purpose of argument. It was against the said order C.R.P.No.236 of 2006 has been filed by the defendants/revision petitioners.
6. Mr.S.K.Ragunathan learned counsel appearing for the petitioners in both these cases would submit that I.A.No.710 of 2003 dated 23.06.2003 filed by the plaintiffs for amendment can only be consequential to the allowing of I.A.No.388 of 2003 filed by the plaintiff to implead him as a party and which was allowed on 23.06.2003 and if such amendment application is filed, it is necessary that notice should have been given to the defendants. When such notice was not given and the amendment has been ordered without notice in I.A.No.710 of 2003, the application filed by the defendants in I.A.No.1233 of 2005 to cancel the said order is maintainable especially in the circumstance that the fact of amen
