Anto vs. Sathyanandan, Sunil, Haridas, Rajamani and Binoy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943 OP(C) NO. 2510 OF 2021 AGAINST THE ORDER/DATED 02.12.2021 IN IA.NO.4/2021 IN OS 415/2010 OF PRINCIPAL SUB COURT,IRINJALAKUDA ## PETITIONER/PLAINTIFF: ANTO AGED 67 YEARS S/O. OLATTUPURATH MICHEL, PALLIPURAM VILLAGE AND DESOM, KODUNGALLUR TALUK-680 732. BY ADVS. K.S.BHARATHAN ALPHIN ANTONY AADITHYAN S.MANNALI VISAKH ANTONY ABEL ANTONY CHRISTINE MATHEW RANCE R. ## **RESPONDENTS/DEFENDANTS:** 1 SATHYANANDAN, AGED 80 YEARS, S/O. CHENTHIRITHI RAMAN, PALLIPPURAM VILLAGE AND DESOM, KODUNGALLUR TALUK, PIN – 689732. 2 SUNIL AGED 40 YEARS S/O. CHENTHIRITHI RAMAN, PALLIPPURAM VILLAGE AND DESOM, KODUNGALLUR TALUK, PIN - 689732. 3 HARIDAS, AGED 40 YEARS S/O. CHENTHIRITHI RAMAN, PALLIPPURAM VILLAGE AND DESOM, KODUNGALLUR TALUK, PIN - 689732. O.P(C).No.2510 of 2021 2 4 RAJAMANI, AGED 65 YEARS W/O. CHENTHIRITHI BAHULEYAN, PALLIPPURAM VILLAGE DESOM, KODUNGALLUR TALUK, PIN - 689732. 5 BINOY AGED 39 YEARS S/O. CHENTHIRITHI BAHULEYAN, PALLIPPURAM VILLAGE DESOM, KODUNGALLUR TALUK, PIN – 689732. BY ADVS. V.M.KRISHNAKUMAR T.N.MANOJ P.R.REENA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 O.P(C).No.2510 of 2021 ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C).No.2510 of 2021_ ================================ _Dated this the 25[th] day of January, 2022_ ## _**J U D G M E N T**_ In this Original Petition filed under Article 227 of the Constitution of India, the plaintiff in O.S.No.415/2010 on the finding of the Principal Sub Judge, Irinjalakuda raised challenge against order in I.A.No.4/2021 dated 2.12.2021 in the above Suit whereby, the learned Sub Judge dismissed the said application seeking amendment. 2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents. 3. The learned counsel for the petitioner argued at length to substantiate that the amendment sought for in I.A.No.4/2021 is absolutely necessary to decide the dispute in between the parties and therefore the court below went wrong 4 O.P(C).No.2510 of 2021 in dismissing the petition. The learned counsel reiterated the averments stated in the affidavit in support of this petition and canvassed amendment as sought for after setting aside the order impugned. I have perused the affidavit in support of the amendment and the amendment sought for. It has to be noted that the amendment sought for after completion of the evidence and after adjourning the case for final hearing repeatedly. 4. Initially, the plaintiff claimed right of easement by prescription in respect of B schedule pathway alleging that the B schedule is the property belonging to defendants 4 and 5. Now the plaintiff wants to amend the plaint stating that B schedule alleging that B schedule is passing through the property of defendants 1 to 5 in deviation from earlier pleadings. Secondly, it has been averred that the above mistakes could not be corrected because his earlier counsel had given wrong legal advice. It has been stated further that reference to mediation of this matter was sought after 5 O.P(C).No.2510 of 2021 completion of the evidence and failure to settle the dispute otherwise. 5. The defendants filed detailed objection highlighting the history of the case. It has been narrated therein that after completion of evidence when the case was posted, the same was adjourned for hearing on multiple occasions and thereafter it was referred to mediation. Though the matter kept pending before the mediation centre for a while, mediation failed. Again also hearing court adjourned for 2 years and at the fag end, this amendment application was filed by authorising another counsel on the ground that the earlier counsel given wrong legal advice. It has been stated in the objection further that the amendment sought for, if incorporated, the basic structure of the plaint would be changed and therefore the defendants would have to file additional written statement and adduce evidence. Further it has been stated that the defendants filed argument note in this case and after perusal of the argument note 6 O.P(C).No.2510 of 2021 submitted, the amendment application has been filed to fill up the lacuna in the plaintiff's case. 6. I have perused the order passed by the learned Munsiff. The learned Munsiff upheld the objection raised by the defendant and disallowed the amendment sought for in an application filed after completion of trial. 7. While pressing for the amendment, the learned counsel for the petitioner placed decisions of the Honourable Supreme Court reported in [2019 (2) KHC SN 13 (Page No.29(SC)], _**Varun Pahwa v. Renu Chaudhary**_ , to contend that inadvertent mistake on the part of the counsel, who drafted the plaint, cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. On perusal of n the decision, amendment was sought for to correct a inadvertent mistake in the name of the plaintiff. [To be precise, the original name of the plaintiff as "Siddharth Garments Pvt. Ltd. through its Director Varun Pahwa" was allowed to be incorporated instead of "Varun Pahwa through Director of Siddharth Garments Pvt. Ltd.".] Thus it is clear 7 O.P(C).No.2510 of 2021 that an inadvertent mistake in describing the name in a proper form was corrected on the principle that the inadvertent mistake of the counsel, who drafted the plaint, cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. 8. Another decision reported in [2020 (5) KLT 796], _**Nalini v. Chandrika Kumari Amma**_ , rendered by a Single Judge of this Court, has been placed to contend that the amendment proposed as of now by the plaintiff is liable to be allowed. In the above decision, in para.15 and 16, the learned Single Judge held as under: "15. Amendment of plaint is sought by the plaintiffs seeking new relief of declaration that the settlement deeds executed in favour of the defendants are null and void. In that context, the question whether the defendants had disclosed the existence of the settlement deeds in the written statement filed by them would assume significance. If the defendants had disclosed that fact in the written statement, the plaintiffs could not contend that they became aware of the settlement deeds or their execution only after closing the evidence in the suit. 16. Even if the trial court finds that, inspite of exercising due diligence, the plaintiff could not have filed an application for amendment of the plaint before commencement of the trial of the 8 O.P(C).No.2510 of 2021 suit, the court has to consider certain other aspects also. They are : (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? The real controversy test is the basic or cardinal test in deciding whether the amendment is to be allowed or refused. It is the primary duty of the Court to decide whether the amendment is necessary to decide the real dispute between the parties. (2) Whether the application for amendment is _bona fide_ or _mala fide_ ? (3) Whether the amendment would cause such prejudice to the opposite party which cannot be compensated adequately by payment of costs? (4) Whether rejecting the application for amendment would lead to injustice or lead to multiple litigation? (5) Whether the proposed amendment would fundamentally change the nature and character of the case? (6) Whether the claims raised by way of amendment would be barred by limitation as on the date of the application? There are some of the important factors which shall be considered by the court in delaing with an application for amendment of pleadings." 9. Another decision reported in [2020 (4) KHC 434], _**Gopalakrishnan K.T v. Kodasseri Karyat Peethambaran & Ors.**_ also has been placed to contend that a second application for amendment, even after allowing the first application, also would lie. 10. Per contra, the learned counsel for the respondents argued that in order to allow an amendment after commencement of trial, strict complaince of the proviso to Order 6 Rule 17 is mandatory. In support of this contention, 9 O.P(C).No.2510 of 2021 the learned counsel placed decisions reported in [2021 (1) KLT 767], _**Sasikala v. Joseph**_ and also [2009(1) KLT SN 14 (C.No.13) SC], _**Vidyabai v. Padmalatha**_ . In _**Vidyabai**_ 's case ( _supra_ ), the Honourable Supreme Court, after referring the decision reported in [2006 (3) KLT 192(SC) : (2006) 4 SCC 385], _**Rajesh Kumar Aggarwal v. K.K.Modi & Ors.,**_ held that the court should allow amendments that would be necessary to determine the real question of the controversy between the parties but the same indisputably would be subject to the condition that no prejudice is caused to the other side. It is the primary duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to O.VI, R.17 of the Code restricts the power of the court. 11. When the learned counsel for the petitioner was asked to justify compliance of Order 6 Rule 17, the learned counsel justified compliance on the submission that wrong 10 O.P(C).No.2510 of 2021 legal advice given by the earlier counsel was the reason for non incorporation of amendment sought to be incorporated and therefore, Order 6 Rule 17 has been complied. 12. To be on the merits of this case, originally, the Suit was filed for declaration of easement by prescription over B schedule property and for permanent prohibitory injunction restraining the defendants from obstructing B schedule. Mandatory injunction also was sought for to remove the ginger plantation carried out in the plaint C schedule property, forming part of B schedule. After trial and after getting adjournment of the case repeatedly and even failed to settle the matter in mediation, 9 amendments proposed to be incorporated in the plaint. Going by the amendment, it could be gathered that even the length of the B schedule pathway from 50 metres is sought to be amended as 60 metres. Further, the ownership of B schedule initially alleged against defendants 4 and 5 was sought to be corrected, as B schedule belonged to defendants 1 to 5. 11 O.P(C).No.2510 of 2021 Deletion of some portion of the plaint averments, after having made specific admission; and to incorporate pleadings in deviation from the original plaint, also could be gathered from the amendment sought for. It is strange to see that an amendment also sought for to treat the B schedule as a public way since defendants 1 to 5 dedicated property for forming a public pathway. Thus it appears that a drastic amendment to change the entire nature of the case was sought for. 13. The crucial aspect to be decided in this case is the reason for not filing the amendment before commencement of trial as stated in the petition. The reason is nothing but wrong legal advice given by the former lawyer. In this context, it has to be observed that when a person is claiming right of easement by prescription, he must know the dominant as well as servient heritages and the respective owners. To be precise, the person asserting easement right ought not be the owner and occupier and the dominant owner ought not be servient owner to whom the liability is imposed 12 O.P(C).No.2510 of 2021 by way of servient heritage. These vital aspects are matters within the knowledge of the plaintiff and non-mentioning of such vital details in the plaint even before commencement of trial never be the outcome of any wrong legal advice. Similarly, the width as well as the length of the way are also matters well within the knowledge of the plaintiff, particularly, when the right of easement of prescription has been attempted to be established. Similarly, the stature of the property otherwise as that of a public road also is a matter known to the plaintiff. Thus it appears that the matters intended to be incorporated by way of amendment cannot be justified as one occurred due to any wrong legal advice. Further, by allowing an amendment application after completion of trial and after filing argument note by the defendants to defeat the claim of the plaintiff, definitly, would prejudice the defendants and therefore such an amendment cannot be allowed. Here, initially the plaintiff asserted that B schedule is passing through the property of defendants 3 to 4. After having faced the full-fledged trial, 13 O.P(C).No.2510 of 2021 the plaintiff took a `U' turn to contend that the B Schedule is passing through the property of defendants 1 to 5. This would go to show that the plaintiff, who asserted right of easement by prescription over B schedule property, did not know the servient owner or servient heritage at the time of filing the Suit. This would go to the root of the matter. The other amendment including the length of the pathway also is a matter known to the plaintiff at the time of filing the Suit though he had used the pathway for 20 years to justify right of easement by prescription. Thus it appears that though the amendment was sought for finding fault on the earlier counsel, in fact, facts which should be within the knowledge of plaintiff at the time of filing Suit, failed to be incorporated and after having completed the trial and getting the argments advanced by the defendants through argument note, in order to fill up the lacuna and change the entire nature of the Suit, the proposed amendments sought to be incorporated. 14 O.P(C).No.2510 of 2021 For the said reasons, I am not inclined to revisit the order of the learned Sub Judge as the order is perfectly justified, since the same does not suffer from any perversity or arbitrariness. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ 15 O.P(C).No.2510 of 2021 ## **APPENDIX OF OP(C) 2510/2021** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE PLAINT IN OS NO.| |---|---| ||415/2010 FILED ON 21.07.2010.| |Exhibit P2|TRUE COPY OF THE WRITTEN STATEMENT| ||FILED BY THE RESPONDENTS 1 TO 3 DATED| ||05.10.2010.| |Exhibit P3|TRUE COPY OF THE WRITTEN STATEMENT| ||SUBMITTED BY RESPONDENTS 4 AND 5| ||DATED 27.06.2015.| |Exhibit P4|TRUE COPY OF THE APPLICATION FOR| ||AMENDMENT AS IA NO.4 OF 2021 DATED| ||01.10.2021 ALONG WITH THE AFFIDAVIT.| |Exhibit P5|TRUE COPY OF THE OBJECTION SUBMITTED| ||BY RESPONDENTS 1 AND 2 TO EXHIBIT P4,| ||DATED 11.10.2021.| |Exhibit P6|TRUE COPY OF THE OBJECTION SUBMITTED| ||BY RESPONDENTS 4 AND 6 TO EXHIBIT P4,| ||DATED 04.10.2021.| |Exhibit P7|TRUE COPY OF THE ORDER DATED| ||02.12.2021 IN IA NO.4/2021 IN OS NO.| ||415/2010.| |Exhibit P8|TRUE COPY OF THE COMPROMISE DECREE| ||DATED 03.07.2013 IN OS NO.398 OF 2010| ||ON THE FILES OF ADDITIONAL SUB JUDGE,| ||IRINJALAKUDA.| |Exhibit P9|TRUE COPY OF THE ADVOCATE| ||COMMISSIONER REPORT AND ROUGH PLAN| ||SUBMITTED BY HER DATED 04.08.2010.|