ORDER

This revision petition has been filed against the order dated

21.12.2018 passed in I.A.No.422 of 2018 in O.S.No.156 of 2010 on the file of the District Munsif cum Judicial Magistrate No.1, Usilampatti. 2.The learned counsel for the revision petitioner/plaintiff would state that he filed the above suit against the respondents/defendants for the relief of partition of the suit schedule properties. The petitioner is the son of one Rajangam and his mother is Mayilammal and both of them died. The 1st defendant is the second wife of the petitioner's father Rajangam and defendants 2 and 3 born to the petitioner's father through the 1st defendant. The 3rd defendant died on 22.07.2010. The respondents 3 to 5/defendants 4 to 6 are her legal heirs and the respondents 6 to 8/defendants 7 to 9 are subsequent purchasers of the suit properties. In the suit, the defendants filed written statement on 23.09.2011 taking a defence that on accepting Rs.2,000/- the petitioner has executed a release deed dated 27.07.1998, extinguishing his rights from the joint family properties and therefore, the petitioner filed the present interlocutory application to amend the prayer in the plaint by adding the relief of declaration declaring the said release deed dated 27.07.1998 as null and void. The trial Court, by the impugned order dated 21.12.2018, dismissed the petition for amendment that since the petitioner has not filed the present petition within three years from the date of written statement, it is barred by limitation, against which, this revision is filed.

3.The learned counsel for the petitioner would state that though the written statement was filed on 23.09.2011 alleging that the petitioner executed the release deed, the said deed was marked before the trial Court only on 06.08.2018 and the present petition has been filed on 20.09.2018 ie., within 3 years therefrom and hence, it is well within the period of limitation, but the trial Court has erroneously dismissed the petition on the ground of limitation. He would further state that application for amendment has to be considered and decided along with other issues of the suit and it should not be summarily dismissed on the ground of limitation.

4.The learned counsel for the petitioner would further state that the alleged release deed was not a listed document along with the written statement and it was marked only on 06.08.2018 ie., after 6 years, in violation of the mandatory provision Order 8 Rule 1A(3) CPC. The 1st respondent /1st defendant himself has admitted in paragraph 6 of the written statement that after the demise of the petitioner's/plaintiff's mother, his grandfather took the petitioner/plaintiff to his village and more than 40 years, there was no contact and relationship between the plaintiff and his father as well the defendants. The said averment itself would prima facie prove that the alleged release deed is forged one and without considering the same, the Court below has mechanically dismissed the present petition. Thus, he prayed to set aside the impugned order and to allow the amendment petition.

5.The learned counsel for the respondents 1 to 6 would state that the petitioner has wantonly suppressed the execution of the release deed dated 27.07.1998 in the plaint and though he came across the averments of the written statement as to the release deed in the year 2011 itself, till 2018, he did not take steps either to cancel the release deed or to file amendment petition. He would further state that by way of amendment, the petitioner is seeking new relief which is not admissible and the amendment petition filed after commencement of trial cannot be entertained as per Order VI Rule 17 of C.P.C.

6. The learned counsel for the respondents 1 to 6 further submitted that the said deed has been registered on the file of the Sub Registrar, Usilampatti and therefore, it cannot be said to be forged. It is further submitted that even after knowing the release deed from the written sta