Amalraj v. POABS Enterprises (P) Ltd and RBT Pvt. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939** ## **OP(C).No. 2904 of 2017 (O)** **--------------------------IA 839/2017 IN OS 133/2011 OF SUB COURT, KATTAPPANA -------------** **PETITIONER :** - **------------------** **AMALRAJ, AGED 72 YEARS, S/O. ARULAPPAN, MANJUMALA ESTATE, LOWER DIVISION, MANJUMALA VILLAGE PEERMADE TALUK, IDUKKI DISTRICT.** ## **BY ADV. SRI.S.SACHITHANANDA PAI** **RESPONDENTS :** **-----------------------** **1. POABS ENTERPRISES (P) LIMITED, COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT K.P.4/142, KUTTOOR, OTHERA ROAD, KUTTOOR P.O, THIRUVALLA IN PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS DIRECTOR THOMAS JACOB@ JINU, S/O. P.A. JACOB, AGED 40 YEARS, PANACHAVIL HOUSE, OTHERA ,KUTTOOR P.O, THIRUVALLA-689106.** **2. RBT PVT. LTD, LAHERI ASARAI, BERBENGA DISTRICT, BIHAR-846 001.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **OP(C).No. 2904 of 2017 (O) -------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **:** **EXHIBIT P1: TRUE COPY OF THE PLAINT IN OS 133/11 OF SUB COURT KATTAPPANA.** **EXHIBIT P2: TRUE COPY OF THE WRITTEN STATEMENT IN OS 133/11 OF SUB COURT, KATTAPPANA.** **EXHIBIT P3: TRUE COPY OF THE PETITION IN IA 839/17 IN OS 133/11 OF SUB COURT, KATTAPPANA.** **EXHIBIT P4: TRUE COPY OF THE OBJECTION IN IA 839/17 IN OS 133/11 OF SUB COURT, KATTAPPANA.** **EXHIBIT P5: TRUE COPY OF THE ORDER IN IA 839/17 IN OS 133/11 OF SUN COURT, KATTAPPANA.** **RESPONDENT(S)' EXHIBITS : NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** ## **bp** ## **ANIL K.NARENDRAN, J.** ................................................... **O.P.(C)No.2904 of 2017** ..................................................... **Dated this, the 04[th] day of October, 2017** ## **J U D G M E N T** The petitioner is the first defendant in O.S.No.133 of 2011 on the file of the Sub Court, Kattappana, a suit filed by the first respondent herein for a declaration of its title over plaint A and B schedule properties and for recovery of the same with mesne profit. The wife of the first defendant is the second defendant in that suit. The defendants filed Ext.P2 written statement, contending that plaint A and B schedule properties are in their possession since 1993. They have also constructed a residential building in the said property. They have perfected title over the plaint schedule properties by limitation and adverse possession. 2. In March, 2017 the plaintiff filed an application to amend the suit by impleading the original owner of the plaint schedule properties, the second respondent herein, as the second plaintiff. The extent of the plaint schedule properties was also sought to be amended. The court below allowed that application by its order dated 09.03.2017. Thereafter, on O.P.(C)No.2904 of 2017 : 2 : 13.09.2017, when the suit was listed for trial, the defendants filed I.A.No.839 of 2017, under Order VI, Rule 17 of the Code of Civil Procedure, 1908 seeking an order to amend Ext.P2 written statement. The relief sought for in I.A.No.839 of 2017, i.e., Ext.P3 application was opposed by the plaintiffs by filing Ext.P4 objections. After considering the rival contentions, the court below dismissed the said application by Ext.P5 order dated 16.09.2017. Feeling aggrieved, the petitioner/first defendant is before this Court in this original petition filed under Article 227 of the Constitution of India. 3. Heard the learned counsel for the petitioner/first defendant. 4. The sole issue that arises for consideration in this original petition is as to the legality or otherwise of Ext.P5 order passed by the court below, whereby I.A.No.839/2017 filed by the defendants in O.S.No.133/2011, seeking an order to amend Ext.P2 written statement stands rejected. 5. O.S.No.133/2011 originally filed by the first respondent herein is one for a declaration of its title over plaint A and B schedule properties and for recovery of the same with O.P.(C)No.2904 of 2017 : 3 : mesne profit. In the said Suit, the petitioner herein and his wife filed Ext.P2 written statement contending that plaint A and B schedule properties are in their possession since 1993 and that, they have constructed a residential building in that property. In Ext.P2 written statement, the defendants claimed title over the plaint schedule properties by limitation and adverse possession. In the said written statement, the defendants have also raised the plea of non-joinder of necessary party, since the original owner of the plaint schedule properties, i.e., RBT Company is not made a party to the suit. 6. In March, 2017, the first respondent herein filed an application for amendment of the plaint. On 09.03.2017, the court below allowed the said application and accordingly, RBT Company, the original owner of the plaint schedule properties was impleaded as the second plaintiff, and the extent of plaint schedule properties was also amended, as sought for. Thereafter, on 13.09.2017, when the suit was listed for trial, the defendants filed Ext.P3 application under Order VI, Rule 17 of the Code seeking an order to amend Ext.P2 written statement. O.P.(C)No.2904 of 2017 : 4 : 7. In Ext.P3 application, the defendants have sought for an order to strike off paragraph 4 of Ext.P2 written statement, except the first four sentences, and to incorporate the facts as stated in paragraph 1 of Ext.P3 application. The defendants have also sought for an order to incorporate the facts as stated in paragraph 2 of the said application, as paragraph 4A of Ext.P2 written statement, after paragraph 4. By way of that amendment, the defendants want to contend that they are in ownership and possession of the plaint schedule properties since 1992 and that, on 02.07.1998 the second defendant and the second plaintiff had entered into an agreement, whereby the second plaintiff had agreed to sell an extent of 6 cents of land in Manjumala Village for a total sale consideration of Rs.1,25,000/- and the defendants had on the very same day paid the entire sale consideration and the second plaintiff had agreed to execute proper sale deed after the attachment order is lifted by the Provident Fund authorities. So no sale deed was executed then and the defendants continued possession over the property in pursuance of the said agreement from 02.07.1998 onwards O.P.(C)No.2904 of 2017 : 5 : and are continuing in possession of the same, in part performance of the agreement, and they are entitled to continue possession over that property. By way of amendment, the defendants want to claim protection under Section 53A of the Transfer of Property Act, 1882 contending that they continued possession in part performance of that agreement from 02.07.1998. 8. Therefore, by way of the proposed amendment, the defendants want to withdraw all admissions made in paragraph 4 of Ext.P2 written statement and introduce a totally different, new and inconsistent plea of continued possession of the plaint schedule properties in part performance of an agreement with the second plaintiff, in order to claim protection under Section 53A of the Transfer of Property Act. Such an amendment, if permitted, would change the colour and complexion of the controversy between the parties to the suit, which cannot be permitted in an application filed under Order VI, Rule 17 of the Code. Therefore, the court below cannot be found fault with in dismissing Ext.P3 application for amendment of Ext.P2 written statement. O.P.(C)No.2904 of 2017 : 6 : 9. The proviso to Order VI, Rule 17 of the Code introduced by the Code of Civil Procedure (Amendment) Act, 2002 is intended to ensure speedy trial of cases by curtailing protraction of cases at the trial stage. In a case where the trial has commenced, the Court can allow an application made for amendment of pleadings, if it comes to the conclusion that in spite of due diligence, the applicant could not file it before commencement of trial, and that the amendment sought for is necessary for the purpose of determining the real controversy between the parties. 10. In **Rajkumar Gurawara (Dead) through Lrs. v. S.K. Sarwagi and Co. (P) Ltd. [(2008) 14 SCC 364]** the Apex Court held that, Order VI, Rule 17 of the Code confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. In the former case, the opposite O.P.(C)No.2904 of 2017 : 7 : party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. 11. In the instant case, in Ext.P2 written statement dated 06.02.2012 the defendants have raised the plea of nonjoinder of necessary party, contending that the original owner of the plaint schedule properties, i.e., RBT Company is not made a party to the suit. On 09.03.2017, the court below allowed the amendment application filed by the first respondent herein and accordingly, the original owner of the plaint schedule properties was impleaded as the second plaintiff, and the extent of plaint schedule properties was also amended. Thereafter, only on 13.09.2017, when the suit was listed for trial, the defendants filed Ext.P3 application under Order VI, Rule 17 of the Code seeking an order to amend Ext.P2 written statement. The defendants could not explain the O.P.(C)No.2904 of 2017 : 8 : delay in filing the application for amendment and they could also not establish that, in spite of due diligence, they could not file such an application before commencement of trial. In such circumstances, the court below cannot be found fault with in dismissing the said application for amendment by Ext.P5 order. 12. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 13. In **Sobhana Nair K.N. v. Shaji S.G. Nair (2016** O.P.(C)No.2904 of 2017 : 9 : **(1) KHC 1)** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 14. Viewed in the light of the law laid down in the decisions referred to supra, I find absolutely no ground to interfere with Ext.P5 order passed by the court below. In the result, this original petition fails and the same is accordingly dismissed. The court below shall finally dispose of the suit, untrammelled by any observations contained in this judgment touching the merits of the case, which are made purely for O.P.(C)No.2904 of 2017 : 10 : deciding the challenge made in this original petition against Ext.P5 order. Sd/- **ANIL K. NARENDRAN, JUDGE** Bb _[True copy]_ _P.A to Judge_