1. This Civil Revision Petition has been filed against the order dated 23.04.2008 made in I.A.No. 68 of 2008 in O.S.No. 74 of 2004 on the file of the Principal Sub Court, Gobichettipalayam.

2. This Civil Revision Petition has been filed by the defendant in O.S.No.74 of 2004.

3. O.S.No.74 of 2004 has been filed by the respondents/plaintiffs before the Subordinate Court, Gopichettipalayam, for partition and separate possession and for injunction.

4. The case of the plaintiffs in the said suit was that, the suit properties are the ancestral properties which fell to the share of their late father M.C.Narayanaswamy under a Registered Family Partition Deed dated 27.01.1963. The suit properties were not partitioned during the life time of their father and during his life time he had executed an unregistered will on 02.10.2001, bequeathing the entire properties to the respondents/plaintiffs and therefore, the respondents/plaintiffs are entitled to = share of the suit properties and the defendants and his heirs are entitled to the other = share. The defendant filed a written statement and the suit is being contested. While so, pending suit, the plaintiffs filed I.A.No.361 of 2007 to amend the plaint claiming 7/12th share in the suit properties on the basis of the rights under the Hindu Succession (Amendment) Act 39 of 2005. The said application was resisted by the petitioner/the defendant in the suit by filing a counter. The trial court by order dated 07.12.2007, dismissed the application. No revision was filed against the said order and the same became final. Thereafter, the suit was taken up for final hearing. At that time, the plaintiffs filed I.A.No.68 of 2008 to withdraw the suit with a liberty to file a fresh suit for the same cause of action in the light of the Hindu Succession (Amendment) Act, 2005. This application was resisted by the petitioner herein/the defendant in the suit by filing a counter. The trial court allowed the application by order dated 24.03.2008. Aggrieved over the same, the above revision has been filed by the defendant.

5. I have heard the learned senior counsel, Mr.S.V.Jayaraman appearing for the petitioner and the learned senior counsel, Mrs.Hema Sampath appearing for the respondents/plaintiffs. I have also gone through the documents available on record.

6. The learned senior counsel appearing for the petitioner would contend that having suffered an order of dismissal in the application filed by the plaintiff to amend the plaint, as per the provisions of the Hindu Succession (Amendment) Act 39 of 2005 and having allowed the same to become final, filing an application again to withdraw the suit and to file a fresh suit for the same cause of action ought not to have been allowed by the trial court. According to the learned senior counsel, the plaintiffs are estopped from claiming any larger relief even if it is available by way of a fresh suit. He further submits that the Amended Act 39 of 2005 will not apply to the case of the plaintiff, as it is not retrospective in operation. Admittedly, the father of the plaintiffs died on 14.10.2001 and the amended Act came into force only in the year 2005. On the death of Mr.Narayanaswamy/the father of the plaintiffs, there was a divastation in the coparcenary and the Hindu Succession Act therefore has no application at all. Therefore, according to the learned senior counsel for the petitioner, the application ought not to have been allowed by the trial court and the order has caused enormous prejudice to the defendant. Hence, it requires interference by this Court. In support of his submissions, the learned senior counsel relied on the following judgments:

1. 1971 (2) MLJ 126 (T.N.Ranganathan vs. T.K.Subramaniam)

2. 1984 (1) MLJ 28 (Lala Chatram, rep. By hereditary and Manging Trustee, R.Ramanatha Misra, Advocate, having its office at Yanaikkal, Madurai vs. Krishnammal and others)

3. 1998 (3) CTC 571 (R.Asokan vs. P.Muthusamy and 3 others)

4. 1999 (2) CTC 5