@JUDGMENTTAG-ORDER
V. Periya Karuppiah, J.@mdashThis revision has been preferred by the petitioner/D8, who had filed the petition in I.A. No. 1861 of 2006 seeking for cancelation of the endorsement made by her counsel on 18.10.2005 of giving up the respondents 1, 2, 6, 8 & 9 and consequently for ordering fresh notice to those persons for the purpose of adjudicating the claim made in I.A. No. 1170 of 2005, which was dismissed by the Court by giving an option to implead the said persons once again in the said petition.
2. The averments made by the petitioner in I.A. No. 1861 of 2006 are as follows: The petitioner is the 8th defendant in the suit. The 1st respondent and respondents 3 to 13 are petitioner''s brothers and sisters born to the father Radhakrishna Reddiar, the mother Kammalammal, who died intestate, leaving the suit properties. The 1st respondent has filed the suit for partition and separate possession of her 1/14th share. After contest, the suit was decreed on 20.12.1994 through passing preliminary decree by declaring the plaintiff''s 1/14th share. The 14th respondent is a purchaser from the first defendant. Pending the suit, the said 1st defendant viz., Srinivasan died. His wife Samundeswari was impleaded as 2nd respondent in the application. The petitioner has filed I.A. No. 1170 of 2005 for passing of preliminary decree in her favour by allotting her 1/14th share in the suit properties. The respondents 1, 2, 6, 8 & 9 failed to receive the summon and hence, the petitioner has instructed her counsel to give up the aforesaid respondents in order to avoid delay. The other respondents 4 and 11 filed additional counter stating that all the respondents are necessary parties. So, the petitioner was advised to cancel the endorsement made by her counsel on 18.10.2005. Hence, the application.
3. In I.A. No. 1861 of 2006 the 3rd respondent filed a counter, which was adopted by respondents 4 and 11, which runs as follows:- The application to pass the preliminary decree itself is belated. The suit is for partition and hence, all sharers are necessary parties. The petitioner admits that she instructed her counsel to give up respondents 1, 2, 6, 8 & 9. She did it so consciously and her advocate had also done. This respondent was not aware because such giving up had been done as early as 18.10.2005 before this respondent was served with notice. The petitioner has engaged a counsel who has 25 years of experience. A decision has been taken consciously. It cannot now be retraced. A decision once taken and order passed cannot be revoked. The court cannot cancel the order. The petition for review has to be filed within 15 days. The application is most vexatious and barred by limitation. Hence, he prays for the dismissal of the application with the exemplary costs of the respondents.
4. The lower Court had after hearing both parties disallowed the claim of the petitioner with the liberty to file appropriate impleading application to bring the respondents, who were given up by the petitioner''s counsel by virtue of the endorsement made on 18.10.2005. Aggrieved by the said order, the petitioner has preferred this revision.
5. Heard Mr. R. Gururaj learned Counsel for the revision petitioner. No representation for the respondent.
6. The learned Counsel for the revision petitioner would submit in his argument that the lower Court was not correct to say that the endorsement was made consciously and therefore, the petition to seek impleadment of the said parties once again in the petition. He would further submit that the lower Court was wrong in directing the petitioner to implead the parties, who were already given up by the petitioner. He would further submit in his argument that the relief granted by the lower Court was not asked for, but it has granted the relief outside the pleadings. He would also submit that the endorsement made by the parties might have been accepted, but in the changed circumstance, if necessary, the court can review its order by accepting the request of the parties, who had endorsed giving up the claim. He would also submit that there cannot be any prejudice for the respondent or the newly added parties in the event of cancellation of the endorsement made by the petitioner''s counsel and it would set right the things in order and would avoid multiplicity of filing of petition. Therefore, he would request the Court to interfere with the order passed by the lower Court and to permit the petitioner to cancel the endorsement made by her counsel on 18.10.2005, and thus this revision may be allowed.
7. No representation for the respondents.
8. I have given anxious thoughts to the arguments advanced by the learned Counsel for the petitioner. I have gone through the records. The suit was originally filed by the first respondent/plaintiff for partition and separate possession of the suit properties and accordingly, the suit was decreed in favour of the plaintiff in respect of her 1/14th share in the suit property. The petitioner was ranked as D8 and she was also found entitled to 1/14th share. However, the petitioner/D8 did not pay Court fee for the allotment of her 1/14th share in the suit properties and therefore, she had filed a separate petition I.A. No. 1170 of 2005 seeking for allotment of her 1/14th share in the suit properties. In the said petition only the learned Counsel for the petitioner/D8 had made an endorsement against the respondents 1, 2, 6, 8 & 9 that the petitioner has given up the claim over them. Subsequently, on the vehement contest made by the respondents 4 & 11 that those respondents are necessary parties, she had sought for cancellation of the endorsement made by her counsel against the giving up of respondents 1, 2, 6, 8 & 9. The said respondents 1, 2, 6, 8 & 9 and other co-defendants were parties to the preliminary decree. The claim now made by the petitioner/D8 in I.A. No. 1170 of 2005 was mere allotment of her 1/14th share in accordance with the preliminary decree passed therein. The respondents 1, 2, 6, 8 & 9 were already on record, but the claim was given up as per the endorsement made on 18.10.2005. Even as per the orders of the lower Court the said respondents could be impleaded once again. If so, their ranks would be respondents 15 to 19 in the said petition. The names of the respondents 1, 2, 6, 8 & 9 will be again repeated as respondents 15 to 19 and confusion will be the result at the time of the disposal of the petition. There was no revision or any petition filed against the order passed by the lower Court by the contesting respondents namely R3, R9 and R11, in respect of impleadment of the respondents 1, 2, 6, 8 & 9 once again. Once they did not agitate impleadment again there will not be any harm caused to other co-respondents in permitting the learned Counsel for the petitioner to cancel the endorsement of giving up the claim against the respondents 1, 2, 6, 8 & 9. It would be amounting to the review or amending its order in the change of circumstance. Nobody will be prejudiced if the cancellation of endorsement is ordered by the lower Court. Moreover, it will avoid multiplicity of proceedings. The petitioner has come with certain rights in the preliminary decree. Whether such a decree can be allowed or not is the question to be decided in the said I.A. No. 1170 of 2005. Therefore, it has become necessary to interfere with the order passed by the lower Court and thereby, to allow the claim of the petitioner in the said petition. Accordingly, the revision is allowed and the endorsement made by the petitioner''s counsel on 18.10.2005 by way of giving up respondents 1, 2, 6, 8 & 9 is ordered to be cancelled and fresh notice is ordered to be issued to those persons and thereby I.A. No. 1861 of 2006 is allowed.
9. In the result, the revision is allowed and consequently I.A. No. 1861 of 2006 pending on the file of the lower Court is allowed. There is no order as to costs.
