A.T. Jose v. Saji P. Baby and others

_**OP(C).2009/2020**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 13[TH] DAY OF AUGUST 2021 / 22ND SRAVANA, 1943 OP(C) NO. 2009 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OS 208/2012 OF PRINCIPAL SUB COURT,KOTTAYAM, KOTTAYAM** ## **PETITIONER/S:** A.T.JOSE AGED 62 YEARS ADAYANOOR HOUSE, PARAMPUZHA P.O., PERUMBAIKKADU VILLAGE, KOTTAYAM TALUK. BY ADVS. B.KRISHNA MANI SMT.DHANUJA M.S ## **RESPONDENT/S:** 1 SAJI.P.BABY AGED 58 YEARS S/O.BABY, PULIMOOTTIL HOUSE, CHENNAM KARA, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT-689573. 2 ANITHA SAJI, AGED 55 YEARS D/O.P.V.PAULOSE, 75 HAL-THIRD, BANGALORE STAGE MAIN, 468/9TH BANGALORE TOWN, KARNATAKA STATE560005. 3 JAIMES JOSEPH, S/O.JOSEPH, MANJAPPALLIL HOUSE, KANAKKARI KARA, MEENACHIL TALUK, REP. BY POWER OF ATTORNEY HOLDER M.J.JOSE, MANJAPPALLIL HOUSE, KANAKKARI KARA, MEENACHIL TALUK, KOTTAYAM DISTRICT-686577. 4 RAJAMMA MATHEWS, AGED 77 YEARS W/O.O.M.MATHEWS, H58/468, JEEVAN BEERA NAGAR, _**OP(C).2009/2020**_ 2 BANGALORE, 9TH MAIN ROAD, HALL-3RD STAGE, KARNATAKA-560005. 5 STATE OF KERALA, REP. BY DISTRICT COLLECTOR, KOTTAYAM-686002. 6 R.D.O.KOTTAYAM, MAIN CIVIL STATION, KOTTAYAM-686002. 7 C.K.CHANDRAN NAIR, RETD. ADDITIONAL THASILDAR, PARUTHIKULAM HOUSE, MOOLEDAM P.O., NATTAKOM VILLAGE, KOTTAYAM DISTRICT686026. 8 REGISTRAR, OFFICE OF THE REGISTRAR OF FIRMS, THIRUVANANTHAPURAM-695025. BY ADVS. SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW R5. R6 AND R8 BY GOVT.PLEADER SRI.JOHNSON M.I THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 8.7.2021, THE COURT ON 13.08.2021 DELIVERED THE FOLLOWING: _**OP(C).2009/2020**_ 3 ## **V.G.ARUN, J. ----------------------------------------------O.P(C).No. 2009 of 2020** ## **----------------------------------------------Dated this the 13[th] day of August, 2021** ## **JUDGMENT** The petitioner is the plaintiff in O.S.No.208 of 2012 of the Sub Court, Kottayam. The suit is filed seeking the following reliefs; to set aside the order passed by the Registrar of Firms on the Form A submitted by the respondents claiming the petitioner to have resigned from the partnership firm named ‘Hewitic Auto Industries’, to cancel the mutation of 64.250 cents of land in Perumbayikad Village effected in the name of the 2nd respondent; to declare the petitioner’s title over plaint schedule items 2 and 3 and to injunct the defendants from alienating or committing waste in the properties. The averments in the suit is to the following effect; The plaintiff along with defendants 2 and 3 had constituted a partnership firm by name ‘Hewitic Auto Industries’. In 2007, the partners decided to dissolve the partnership and entered into an agreement for that purpose, as per the terms of which the assets of the firm, valued at Rs.66 lakhs, were sold to the 1st defendant. Out of the said amount, Rs 40 lakhs was to be remitted for settling a _**OP(C).2009/2020**_ 4 loan taken from the the KFC. The 1st defendant negotiated with the KFC and settled the loan by remitting only Rs.26 lakhs. The balance amount of Rs.14 lakhs is retained by the 1st defendant illegally. The 1st defendant forged the petitioner’s signature in Form A and submitted it before the Registrar of Firms claiming that the petitioner had resigned from the partnership. Further, the 1st defendant created Document No. 2866 of 2008 clandestinely got the immovable property belonging to the partnership mutated in the name of the 2[nd] defendant. 2. The defendants filed written statements refuting the contentions in the plaint. The trial of the suit was completed in February, 2020. Thereafter, the petitioner filed Exhibit P2 (I.A.No.2 of 2020), seeking to amend the plaint by splitting up the prayers and incorporating additional reliefs. It was stated in Exhibit P3 that at the time of filing the suit the petitioner did not have necessary funds for remitting the requisite court fees for larger reliefs and that after the suit was posted for hearing, the petitioner’s counsel advised him to remit the additional court fees and amend the plaint, lest the petitioner will be deprived of the required relief. 3. The defendant objected to the proposed amendment on the ground of delay and on the ground that the amendment will alter the basic nature of the suit. According to the defendant, the _**OP(C).2009/2020**_ 5 attempt of the petitioner is to withdraw certain admissions in the plaint and to drag the proceedings. 4. The court below dismissed the amendment application finding that the amendment was sought at a highly belated stage and that the only explanation offered was the financial difficulties of the petitioner at the time of institution of the suit. The court below also found that if the amendment is allowed, the nature of the suit will be altered from a suit for declaration to a suit for partition. 5. Sri.B.Krishna Mani, learned Counsel for the petitioner vehemently contended that the findings in the impugned order are patently illegal. According to the learned counsel, all that is sought through the amendment is to split up the reliefs in the original plaint and to grant permission for remitting the requisite court fees. The averments in support of the relief has been made in the original plaint itself and therefore the amendment would not change the nature of the suit. The reason as to why the amendment application was filed belatedly was also stated and hence there was no justification for dismissing the application for amendment. It is contended that the courts are bound to adopt a liberal approach in the matter of amendment. 6. In reply, Sri. Rinny Stephen Chamaparambil, learned counsel for the respondent submitted that the attempt of the _**OP(C).2009/2020**_ 6 petitioner is to change the nature of the suit. It is contended that the prayer is not merely for splitting up the reliefs in the plaint, but incorporation of more reliefs, some of which are clearly barred by limitation. Attention is drawn to relief No.F in Exhibit P2, whereby the petitioner seeks to incorporate a prayer for recovery of Rs.14 lakhs appropriated on 9.8.2007 and relief No.G, which is to declare, Document No.2866 of 2008 dated 30.8.2008 as void. Reliance is placed on the decision of the Honourable Supreme Court in _**Vijendra Kumar Goel v. Kusum Bhuwania**_ [(1997) 11 SCC 457] in support of the contention. It is further contended that as per the Proviso to Order VI Rule 17, no application for amendment shall be allowed after the 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. It is contended that Exhibit P2 application was filed after the trial had concluded and no reason is stated as to why the amendment was not filed before commencement of trial. Support for the contention is garnered by relying on the decision of the Apex Court in _**Revanna M. v. Anjanamma**_ [(2019) 4 SCC 332]. 7. Indisputably, the application for amendment was filed after the trial had concluded. The proviso to Order VI Rule 17 inhibits the court from allowing an application for amendment after _**OP(C).2009/2020**_ 7 commencement of trial, unless the court is satisfied that the party could not have sought the amendment earlier, in spite of due diligence. In _**Revanna** (supra)_ _**,**_ the Honourable Supreme Court has held that the proviso to Order VI Rule 17 virtually prevents an application for amendment of pleadings from being allowed after the 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 the trial. It is also held that the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. The only explanation offered in Exhibit P2 is that, at the time when the suit was instituted, the petitioner did not have the financial capacity to pay the court fees. The other reason being that the petitioner’s counsel had pointed out the necessity of including the additional reliefs only after the suit was posted for hearing. As rightly held by the trial court, the aforementioned reasons are not sufficient to satisfy the requirement of the proviso to Order VI Rule 17. 8. I also find merit in the contention of the learned counsel for the respondent that the reliefs sought to be incorporated by way of amendment are barred by limitation. One such relief is to recover an amount of Rs.14 lakhs appropriated by the 1st defendant on _**OP(C).2009/2020**_ 8 9.8.2007 and the other, to declare as void a registered document dated 30.8.2008. In _**Vijendra Kumar Goel** (supra)_ the plaintiff had sought to amend a suit based on an agreement by incorporating a prayer for specific performance. The High Court upheld the challenge against rejection of the amendment by the lower court and the defendant took up the matter in appeal. The Honourable Supreme Court set aside the order of the High Court with the following observation; “ _**4.** In the instant case the High Court appears to have proceeded on the basis that in the plaint the plaintiffrespondent has made out a case for specific performance and nothing new had been sought for by way of amendment. We have perused the plaint. We are unable to agree with the said view of the High Court. It is no doubt true that in the plaint the plaintiff-respondent has made a reference to the agreement and his having requested the appellant to execute the sale deed. But there is nothing in the plaint to show that the plaintiffrespondent was seeking specific performance of the contract. The suit, as framed, is a suit for declaration and injunction only. It was sought to be converted into a suit for specific performance by the plaintiff-respondent by way of amendment in the plaint in 1993 when the claim for specific performance had become barred by limitation. The submission of Shri Dhavan is that even on the date of the filing of the suit, the claim for specific performance was barred by limitation. We do not propose to go into that question.”_ _**OP(C).2009/2020**_ 9 9. It is settled law that once an amendment is allowed, it will relate back to the date of the suit. Even then, the additional reliefs are hopelessly barred by limitation. Therefore, merely for the reason that some mention about the reliefs sought to be incorporated is made in the plaint, the prayer for amendment cannot be allowed. In the result, the original petition is dismissed. **Sd/-** **V.G.ARUN, JUDGE** _vgs_ _**OP(C).2009/2020**_ 10 ## **APPENDIX OF OP(C) 2009/2020** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE PLAINT DATED 28.03.2012 FILED PETITIONER BEFORE THE SUB COURT, KOTTAYAM. (O.S.208/2012). EXHIBIT P2 TRUE COPY OF THE I.A.NO.2 OF 2020 IN O.S.NO.208 OF 2012 FILED PETITIONER BEFORE THE SUB COURT, KOTTAYAM. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 16.10.2020 I.A.NO.2 OF 2020 IN O.S.NO.208 OF 2012 BEFORE THE SUB COURT, KOTTAYAM.