Civil Revision Petition No. 542 of 2009 · High Court

This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 02.12.2008 passed by the Senior Civil Judge, Gudivada in I.A.No.481 of 2008 in O.S.No.221 of

2007, whereby the I.A filed by the petitioners/plaintiffs under Order VI Rule 17 C.P.C to amend the plaint was dismissed. The petitioners/plaintiffs through their guardian filed the above suit for partition and possession of 2/3rd share out of the suit schedule property in an extent of Acs.1.09 cents stating that the same is ancestral property. Pending the suit, they filed the above I.A contending that the second defendant obtained a decree with false allegations against the first respondent, who is their father, in O.S.No.97 of 1999, and attempting to sell away the entire suit schedule property for execution of the decree. The second respondent can only sell 1/3rd share of the petitioners’ father, but the entire property cannot be put to sale for due execution of the decree, and therefore, they may be permitted to amend the plaint to claim that the debt, if any, secured by their father is illegal, immoral, without consideration and not binding on them.

The Court below, through the impugned order, dismissed the said I.A on the grounds that originally the petitioners filed the above suit in the year 2003 on the file of the Principal Junior Civil Judge, Gudivada and subsequently it was transferred to the Court below to be tried along with E.A.No.235 of 2003 in E.P.No.6 of 2002 in O.S.No.97 of 1999, as per the orders of the District Judge, Krishna, Machilipatnam; that when the suit is coming up for cross-examination of P.W.1, the present I.A is filed; that the plea sought to be taken by the petitioners is already covered by the issues framed between the parties and indirectly covered by the pleadings of the petitioners and that it is only a legal plea that can be gone into while deciding the issues, and therefore, there is no need to amend the plaint. When a suit is filed by the minors for partition, it is needless to mention that the Court would act as guardian of the said minors and safeguard their interest while deciding the suit.

Therefore, in the instant case also the Court will decide as to whether the debt of the second respondent is illegal and immoral even without amending the plaint. In view of the same, the Court below has rightly dismissed the I.A and the impugned order does not call for any interference by this Court. The Civil Revision Petition is accordingly dismissed. There shall be no order as to costs. Date: 26.04.2011 __________________ A. GOPAL REDDY, J