BY AD v. SURESH KUMAR KODOTH

Heard Sri.Suresh Kumar Kodoth, the learned counsel petitioners Sri.T.Sethumadhavan, learned Senior Counsel, instructed by Adv.M.V.Balagopal on behalf of respondents 1, 3 and 8 and also heard Sri.Pushparajan Kodoth, learned counsel for the respondents 4, 5, 6 and 7.

3. Learned counsel for the petitioner submits that an inadvertent mistake has crept in the plaint, while referring to the year of death of O.P.(C).No. 2646 of 2023 ..5.. the grandfather of the plaintiffs. As against the correct date 29.12.1961, it was vaguely pleaded, without reference to any document, as 1953. Based on such erroneous pleadings, a contention was taken in the written statement that the parties were governed by the erstwhile Mitakshara Law of inheritance, since the succession opened before the coming into force of the Hindu Succession Act. Though, there was some delay in seeking an amendment, the amendment sought for is with respect to a vital aspect, which have a serious consequence on the plaintiffs' claim and that the same ought to have been considered favourably, is the submission made by the learned counsel. Learned counsel would add that, after filing the written statements by the defendants, the petitioners/plaintiffs made enquiries with the Registrar of Births and Deaths to ascertain the correct date of death of the grandfather, Lakshmana. However, there was no entry available, O.P.(C).No. 2646 of 2023 ..6.. whereupon, the plaintiffs preferred an application to make sufficient enquiry and to enter the date on which the grandfather Lakshmana passed away. It has also been claimed that some affidavits have been preferred by certain persons, who have direct knowledge with respect to the date of death of Lakshmana. It is on the strength of the information received from the persons having such direct knowledge that the plaintiffs came to know the date of death as

29.12.1961 and accordingly, Ext.P4 application was filed seeking amendment of the plaint. The final submission of the learned counsel for the petitioner is that Ext.P6 order is flawed in law, inasmuch as, it has not considered the relevant aspects, in the right perspective.

4. The above submissions were seriously refuted by the learned Senior Counsel appearing for respondents 1, 3 and 8. It was initially pointed O.P.(C).No. 2646 of 2023 ..7.. out that, the amendment was sought for at a highly belated stage, which aspect has been taken note of by the learned Munsiff in paragraph no. 7 of the impugned Ext.P6 order. The amendment was sought for when the matter stood listed for trial on 13.11.2023 and the plaintiff was absent on 14th, 15th, 16th of November 2023. Thereafter, an interlocutory application, I.A.No.1/2023, seeking to furnish interrogatory was filed. That application was dismissed, which was followed by the present application for amendment. Thus, in respect of a suit which was filed in the year 2014, wherein, written statements were filed in the year 2014 and 2015, an amendment is sought only in the year 2023, that too, when the matter was posted for trial. The second aspect pointed out by the learned Senior Counsel is that earlier, the plaintiff sought for amendment of the plaint by filing I.A.No.2/2020, wherein, the year of death stated in the plaint as 1963 was O.P.(C).No. 2646 of 2023 ..8.. sought to be amended as 29.12.1961. The said application was also dismissed. In such circumstances, there is no illegality or infirmity with Ext.P6 order, is the submission made by the learned Senior Counsel for respondents 1, 3 and 8.

5. Learned counsel for the respondents 4, 5, 6 and 7, adopted the submissions made by the learned Senior Counsel for other respondents.

6. Having heard the learned counsel appearing on both sides, this Court is not inclined to interfere with Ext.P6 order, which dismissed the amendment application. Primarily, this Court notice that an interlocutory application, I.A.No.2/2020, was earlier preferred by the plaintiffs seeking to incorporate the self-same amendment, which was dismissed by order dated

28.01.2020. Therefore, the instant application O.P.(C).No. 2646 of 2023 ..9.. seeking amendment is hit by resjudicata, as applicable to interlocutory proceedings in a suit. Secondly, this Court finds that the instant amendment application is highly belated. The suit is of the year 2014. Ext.P2 written statement was filed in the year 2014 itself, while Ext.P3 written statement was filed in the year 2015. At any rate, the plaintiffs have come to know about the contention of the defendants that the parties were liable to be governed by the erstwhile Mitakshara Law of inheritance, claiming that grandfather Lakshmana passed away in the year 1953, that is to say, before the coming into force of the Hindu Succession Act. The plaintiffs did precious little to ascertain the facts and to do the needful, in case there is any genuine mistake with respect to the date of death of the grandfather. It is only in the year 2023, that too, when the matter was listed for trial that the plaintiffs woke up from the slumber and O.P.(C).No. 2646 of 2023 ..10.. preferred an application for interrogatories, followed by the instant application for amendment of the plaint.

7. Even, in respect of the present amendment sought for, wherein the date of death of Lakshmana is sought to be corrected as

29.12.1961, there exists no material in support of the same, except an assertion with respect to the knowledge of certain persons. It is the petitioners/plaintiffs' claim that the plaintiffs approached the Registrar of Births and Deaths to ascertain the date and that they were given to understand the death has not been registered. Now, there is an attempt to secure an entry as regards the death of the said Lakshmana, for which, certain persons have allegedly sworn to affidavits as regards the date of death of Lakshmana. Whatever be the legality, genuineness and correctness attached to the said attempt, the O.P.(C).No. 2646 of 2023 ..11.. fact remains that there is no tangible material before the trial court, indicating that the date of death of Lakshmana was 29.12.1961, except a bald assertion made by the plaintiffs. In the absence of any supporting material, the finding of the learned Munsiff that amendment, if permitted, would take away an admission prejudicing the rights and interest of the defendants, cannot be found fault with. This Court also notice that if, the amendment is allowed, the very line of approach which has been adopted by the defendants in their written statement also may have to undergo a paradigm shift. In the result this Original Petition fails and the same will stand dismissed. TR Sd/- C. JAYACHANDRAN JUDGE O.P.(C).No. 2646 of 2023 ..12.. APPENDIX OF OP(C) 2646/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 TRUE COPY OF THE PLAINT IN O.S.NO.249/2014 TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 1,3 AND 8 TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 2,4 TO 7 TRUE COPY OF IA NO.4/2023 IN O.S.NO.249/2014 TRUE COPY OF THE COUNTER DATED 17/11/2023 FILED IN IA NO. 4/2023 IN O.S.NO.249/2014 TRUE COPY OF THE ORDER DATED 22.11.2023 IN IA NO. 4/2023 IN O.S.NO.249/2014