O R D E R

The Revision Petitioner is the plaintiff in the suit and she has filed the suit against her father/1st defendant and her brothers/2nd and 3rd defendants for the relief of partition in O.S.No. 24 of 2013 on the file of learned Addl. District Judge, Namakkal, wherein the defendants appeared and contested the suit by filing their written statement. As per the contention of plaintiff, the suit property is a joint family property, in which, she has claimed 1/4th share in the suit property. But, the defendants 1 to 3 denied the plaintiff's claim stating that the properties are not ancestral joint family property and it belongs to 1st defendant by way of self-acquired properties.

2. During the pendency of the suit proceedings, the plaintiff filed an application in I.A.No.191 of 2015 under Order 6 Rule 17 of C.P.C. to amend the plaint stating that inadvertently, the payment of court fee was typed in the plaint in prayer column as Sec.37(1) of Tamil Nadu Court Fees Act instead of Sec.37(2) of the Act, because she is in joint possession of the property with other co-sharers. That application was strongly objected by the contesting respondents stating that the plaintiff is not in possession of the property, so, she has to pay court fee as prescribed under Sec.37(2) of Tamil Nadu Court Fees Act, but to avoid the payment of court fee for the entire value of property, she filed this vexatious application, hence, her conduct amounts to estoppel. Considering both side submissions, the trial judge dismissed the application stating that the plaintiff not pleaded that she is in joint possession of the property. Challenging the said findings, the plaintiff preferred this Civil Revision Petition.

3. The learned counsel for revision petitioner submitted that the trial court failed to take note of the fact that in para 7 of the plaint, she pleaded that she is having 1/4th share in the joint family property, but due to inconvenience, she is not in possession of the property. Hence, he prayed to set aside the order passed by the trial court.

4. Today, when the matter taken up for hearing, only the purchaser of the property, the 4th respondent appeared and raised his formal objections and the other respondents have not raised objections. On seeing the facts, the plaintiff clearly pleaded that she is in joint possession of the property, but the trial court failed to take note of that fact. Hence, the reasons assigned by the trial judge is liable to be set aside.

5. In the result, this Civil Revision Petition is allowed and the order passed by the trial court in I.A.No.191 of 2015 is set aside. The contesting defendants are given liberty to file their additional written statement in respect of amendment and thereafter, the trial court is directed to dispose the case within a period of six months by giving unnecessary adjournments from the date of receipt of copy of this order. No costs. Consequently, connected Civil Miscellaneous Petition is closed.

27.09.2022 Index : Yes/No Internet: Yes/No Speaking/Non Speaking order rpp To Addl. District Judge, Namakkal.

T.V.THAMILSELVI, J.

rpp

27.09.2022