Aleyamma George v. Susan Philip and Philip Jacob

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** ## **WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933** ## **OP(C).No. 2201 of 2011(O)** **------------------------------------** **[I.A. NO.2277/2011 IN OS.NO.166/2007 OF PRINCIPAL SUB COURT,ERNAKULAM]** **....................** ## **PETITIONER:** **-------------------** **ALEYAMMA GEORGE,W/O.GEORGE KOCHAKKAN, 41/230. `NISHA', CHAKKUMKAL ROAD, PALARIVATTOM, KOCHI -25.** **BY ADVS. SRI.S.VINOD BHAT, SRI.LEGITH T.KOTTAKKAL.** ## **RESPONDENTS:** **------------------------** **1. SUSAN PHILIP, W/O.PHILIP JACOB, NALAM VELIL HOUSE, KALOOR, WORKING AT 14,TEMPLE AVENUE,SHIRLY CROYDON, SURRY, CROS 8QA,ENGALAND, THROUGH HER POWER OF ATTORNEY HODLER ROY-ABRAHAM, AGED 40 YEARS, S/O.K.J.ABRAHAM,KANNIYAPLAZHIKATH, ASTAMUDI,KOLLAM.** **2. PHILIP JACOB, S/O.JACOB JOHN NALAM VELIL HOUSE, KALOOR, WORKING AT 14,TEMPLE AVENUE,SHIRLEY CROYDON, SURRY, CROS 8QA,ENGALAND, THROUGH HER POWER OF ATTORNEY HODLER ROY-ABRAHAM, AGED 40 YEARS, S/O.K.J.ABRAHAM,KANNIYAPLAZHIKATH, ASTAMUDI,KOLLAM.** ## **BY ADV. SRI. B. JAYASANKER.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P.(CIVIL) NO.2201/2011-O:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE PETITION (I.A. 2277/2011 IN O.S. 166/2007) ON THE FILE OF SUB COURT, ERNAKULAM.** **EXT.P.2: COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN I.A. 2277/2011 IN O.S. 166/2007 ON THE FILE OF SUB COURT, ERNAKULAM.** **EXT.P.3: COPY OF THE ORDER DTD. 29/03/2011 IN I.A. 2277/2011 IN O.S. 166/2007 ON THE FILE OF SUB COURT, ERNAKULAM.** ## **EXT.P.4: COPY OF THE PLAINT – O.S. 166/2007 ON THE FILE OF SUB COURT, ERNAKULAM.** **EXT.P.5: COPY OF THE WRITTEN STATEMENT FILED IN O.S. 166/2007 ON THE FILE OF SUB COURT, ERNAKULAM.** **EXT.P.6: COPY OF THE DEPOSITION OF PW.1 IN O.S. 166/2007 ON THE FILE OF SUB COURT, ERNAKULAM.** ## **EXT.P.7: COPY OF THE AGREEMENT DTD. 10/02/2006.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) No.2201 of 2011 -------------------------------------Dated this the 20[th] day of July, 2011.** ## **JUDGMENT** It is said, petitioner was a tenant of the building situated in the suit property and against her, respondents filed a petition under Act 2 of 1965 seeking eviction under Section 11 (3) of the said Act. That application was allowed against which petitioner filed R.C.A.No.74 of 2003. In the meantime, parties entered into Ext.P7, agreement (respondents have disputed execution of the agreement) dated February 10, 2006 as per which petitioner is said to have agreed to purchase the suit property for consideration mentioned therein. It was also (allegedly) agreed that when the sale deed is executed showing a lesser amount than what is really agreed upon, the balance amount shall be remitted in the NRI account of respondents. Alleging that respondents failed to perform their part of the contract, petitioner filed O.S.No.166 of 2007 in the court of learned Principal Sub Judge, Ernakulam for specific performance of the said agreement for sale. Case came up for trial in the list of July 18, 2011 and as I am told, parties adduced evidence and it was taken up for judgment. At that time learned Principal Sub Judge pointed out that there is no alternative payer for refund of the advance amount pleaded by petitioner. Thereon petitioner filed Ext.P1, application dated 28.03.2011 for amendment of the plaint, but apart from incorporating an alternative prayer for refund of the advance amount petitioner also wanted certain other matters to be incorporated in the plaint by **OP(C) No.2201/2011** 2 amendment such as that she is ready and willing to remit the balance sale consideration in court and to answer the contention in the written statement of the respondents, that notwithstanding the clause regarding payment of rest of the amount in the NRI account of respondents the agreement is enforceable. Respondents resisted the application to the extent it concerned amendment other than incorporating the alternative relief for return of advance purchase price. Learned Sub Judge vide Ext.P3, order allowed the application in part in that, petitioner was permitted to incorporate in the plaint an alternative relief for refund of the advance purchase price while the rest of the amendment sought for was disallowed. Ext.P3 to the extent it went against petitioner is under challenge. 2. Learned counsel for petitioner has contended that having regard to the facts and circumstances of the case it was only just, proper and necessary for adjudication of disputes between parties that amendment as prayed for was allowed by the learned Sub Judge. It is contended that in the plaint it is already pleaded that petitioner was ready and willing to perform her part of the contract. But, petitioner wanted to specifically state in the plaint that she was ready and willing to deposit balance sale consideration also in court. In the circumstance, Ext.P3 to the extent it went against petitioner cannot be sustained, it is argued. 3. Learned counsel for respondents contended that amendment disallowed by the Principal Sub Judge cannot be allowed in that it has no relevance to the alternative relief of recovery of advance purchase price. It is **OP(C) No.2201/2011** 3 pointed out by the learned counsel that in view of the proviso to Order 6 Rule 17 of the Code of Civil Procedure (for short, “the Code”), jurisdiction of the court to allow amendment after trial commenced is restricted and the principle that the amendment could be allowed at any stage of the proceeding before the judgment is pronounced must give way to the proviso to Rule 16 of Order 6 of the Code. Learned counsel has placed reliance on the decision of the Supreme ## Court in **Revajeetu Builders and Developers v. Narayanaswamy and Sons and others [(2009) 10 SCC 84]** and in particular, paragraphs 31 to 34. 4. No doubt in view of the proviso to Rule 17 of Order 6 of the Code power of the court to allow amendment is restricted once trial has commenced. The proviso states that amendment shall not be allowed after trial has commenced unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. In the decision relied by the learned counsel for respondents, the historical background of Rule 17 of Order 6 of the Code is stated. Reference is made to the amendment originally made by the Parliament whereby the power to order amendment after institution of the suit was taken away and when there was an uproar from various quarters about that, the Parliament thought it is necessary to retain the power of court for amendment but restricted it by providing the proviso I have referred supra. In paragraph 33 of the decision it is stated that a Senior Advocate of the Delhi High Court has observed in his book 'Justice, Courts and Delays' that 80% of the applications under Rule 17 of Order **OP(C) No.2201/2011** 4 6 of the Code are intended to delay the proceedings whereas 15% of the applications are filed due to lackadaisical approach at the first instance and only 5% of the applications are really intended for the decision in the suit. It is also pointed out that unfortunately, it happens that 80% of the applications notwithstanding the above classification are being allowed and which in turn causes delay in the disposal of suits. In paragraph 33 it is pointed out that the court must scientifically evaluate the reasons, purpose and effect of the amendment and all these factors must be taken into consideration while awarding costs. 5. Now I shall approach the situation in the light of the principles above stated. So far as the jurisdiction of learned Principal Sub Judge to allow amendment which was disallowed is concerned, I am afraid, respondents stand on a weak wicket as they did not object to the learned Principal Sub Judge allowing amendment incorporating alternative relief for recovery of advance purchase price and learned Principal Sub Judge allowed amendment to that extent. I must bear in mind that the said request for amendment and the order allowing amendment are made after commencement of trial. It is pointed out by learned counsel for respondents that in Ext.P1, application for amendment there is no mention about circumstances which may justify amendment in view of the proviso to Rule 17 of Order 6 of the Code. But, as aforesaid it is not a case respondents resisting or challenging jurisdiction of learned Principal Sub Judge to allow amendment after commencement of trial; they agreed to or rather did not object to the learned Principal Sub Judge allowing amendment to **OP(C) No.2201/2011** 5 the extent it concerned incorporation of prayer for recovery of advance purchase price and, that part of the order is not under challenge. In such a situation it is idle for respondents to contend that learned Principal Sub Judge lacked jurisdiction, in view of lack of averment in Ext.P1, application to allow amendment of that part which was disallowed by the learned Principal Sub Judge. Therefore, that argument of the learned counsel for respondents cannot be accepted. 6. Next question is whether on the facts of the case the request for amendment ought to have been allowed. It is seen from Ext.P1, application that relief 6(a) sought to be incorporated is that petitioner is ready and willing to deposit the balance consideration of `37,50,000/- before the court below and get the sale deed executed as per law. It is further stated that petitioner was always ready and willing to pay the balance consideration of `39.5 lakhs to the respondents as required by law of land and was never agreeable or agreed to circumvent or to do any act or aid such act not in consonance with the laws governing the parties. The rest of the amendment sought for is in sort of an explanation to the above said statement sought to be incorporated by amendment. 7. The above amendment was necessitated by a clause in the disputed agreement for sale that if the entire sale consideration as per the agreement is not shown in the sale deed, petitioner has to deposit the rest of the amount in the NRI account of respondents. Based on that clause it was contended by respondents in paragraph 18 of the written statement that the **OP(C) No.2201/2011** 6 agreement if at all found to be genuine is not unsustainable since it is against the public policy and the law of land. In otherwords, what is sought to be incorporated by the amendment is only an explanation to the contention raised in paragraph 18 of the written statement of respondents. 8. It is not as if the allegation regarding willingness and readiness of petitioner to perform her part of the contract is sought to be incorporated for the first time. I have gone though Ext.P4, plaint. Petitioner, even in the original plaint has averred that she was ready and willing to perform her part of the contract. In such a situation petitioner wanted to incorporate a further statement in the plaint by amendment that she is willing and ready to deposit the balance purchase price in the court which was not originally stated in the plaint. I am not inclined to think that amendment sought for changes the character or nature of the suit or is to introduce any new cause of action. I am inclined to think that for a proper adjudication of the dispute involved it was necessary to allow the amendment. In the circumstances the impugned order cannot be set aside. 9. Learned counsel for respondents has raised a grievance that pendency of the suit is affecting the disposal of the R.C.A. No.74 of 2003 as well. Learned counsel has pointed out that when the appeal was pending consideration petitioner approached this Court in R.C.R.No.219 of 2009 and obtained a stay of disposal of R.C.A.No.74 of 2003 on account of pendency of the suit. That grievance of respondents is required to be addressed. Hence learned Principal Sub Judge shall expedite the trial and disposal of the suit. **OP(C) No.2201/2011** 7 Learned counsel for respondents states that respondents are prepared to file additional written statement within fourteen (14) days from the date on which a copy of this judgment is received in the court below. Learned Principal Sub Judge, Ernakulam shall frame additional issues if necessary and dispose of the suit as early as possible having regard to the grievance of respondents. Resultantly this Original Petition is allowed in the following lines: i. Ext.P3, order to the extent it dismissed Ext.P1, application is set aside and Ext.P1, application will stand allowed as prayed for. ii. Petitioner shall carry out amendment in the plaint within seven days of a copy of this judgment reaching the court below. iii. Learned Principal Sub Judge, Ernakulam shall dispose of the suit as provided under law after necessary steps are completed, as expeditiously as possible. **THOMAS P.JOSEPH, Judge.** ## **cks**