Important Point: Inspite of it being an ex parte order, by inclusion of these two properties, the case of the plaintiff is in no way going to be prejudiced. During trial, he could very well establish that these two properties are not available for partition and nothing prevents him from establishing the said fact.

1. The revision petitioner is the plaintiff in the suit filed for partition. The plaintiff is the son of Late N.K. Radhakrishnan. The 1st defendant is the wife of Late N.K. Radhakrishnan and defendants 2 and 3 are daughters of Late N.K. Radhakrishnan.

2. The defendants 1 and 3 filed written statement contesting the claim of share in the suit properties on the ground that most of the properties were settled by Late N.K. Radhakrishnan in favour of the 2nd defendant and some of the suit properties were sold by him during his life time. The agricultural land and the business in the name and style of ''Radha Chemicals'' were not included in the suit schedule properties and therefore, the suit is bad for partial partition.

3. The 2nd defendant filed written statement reserving the right to file additional written statement. Thereafter, she filed additional written statement along with counter claim, seeking 4/9 share in respect of the suit schedule properties.

4. The plaintiff has filed a reply statement to the additional written statement and counter claim and sought for rejection of the counter claim. Meanwhile, the 1st and 3rd defendants have taken out an application to amend the plaint to include two items of property in the suit schedule, on the ground that those properties are also joint family property, which ought to be subjected to partition.

5. This application was heard by the Trial Court and after giving adequate opportunity to file counter, this application was allowed on 07.10.2016 recording that ''Counter not filed. Sufficient time is given. Respondent absent. No representation. Set exparte. Petition allowed''.

6. Aggrieved by this order, the plaintiff has preferred this revision petition on the ground that the application for adding properties by the defendants 1 and 3 in a suit for partition, is unknown to procedures and against the law.

7. The learned counsel for the revision petitioner has contended that the Trial Judge ought to have seen whether there is any proof to include two more properties in the partition suit at the instance of the defendants 1 and 3. In the absence of proof, even though the counter was not filed, the Trial Judge ought to have applied his mind before allowing the amendment petition.

8. The learned counsel further submitted that the plaintiff being the dominant litus, the defendants 1 and 3 cannot seek for inclusion of some more properties in his suit. If the defendants 1 and 3 are aggrieved that some of the properties are left out in the suit for partition, the option is to take a defence that the suit is bad for partial partition or to file a counter claim. Without adopting any of the above two methods, a new procedure unknown to law, has been adopted and allowed by the Trial Court at the instance of the defendants 1 and 3. Without there being any document to substantiate the relevancy of the properties which are sought to be included, the Trial Court has allowed the amendment petition, causing grave injustice to the plaintiff.

9. At the outset, it is the duty of this Court to record that in a partition suit, the concept of dominant litus, is not applicable. This legal position has been settled by the Division Bench of the Hon'ble High Court in the case of Solavaiammal vs. Ezhumalai Gounder, reported in 2012 (1) CTC 159, after taking note of the conflicting judgments by single Judge bench in two different cases. Paragraphs 15 to 17 and 19 of the above case are relevant to be extracted below:-

''15. Keeping the above principles in mind, the question raised in this civil revision petition is to be considered. Though a plain reading of Order VI, Rule 17 of the Code of Civil Procedure would appear that only a party to the plaint or written statement, as the case may be, could seek for amendment on the ground that such a party would be the dominant litus, it will be only a general rule in respect of all suits barring a suit for partition. In terms of Order VI, Rule 17, only the respective par