High Court of KeralaSingle Judge2021-11-05Partially allowed: amendment to include the res...

Babu v. Moni

Case / Petition Number:OP(C) NO. 634 OF 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2021-11-05
Court Decision / Holding: The original petition is allowed in part: the amendment to include the respondent’s property as C Schedule is permitted; exemplary costs are enhanced to Rs. 5,000; the petitioner is permitted to file an additional written statement within one month of the plaint being amended. The court did not interfere with the order of the Advocate Commissioner’s report to the extent it pertains to the boundary as such.
Final Disposition: Partially allowed: amendment to include the respondent’s property as C Schedule permitted; costs increased to Rs. 5,000; additional written statement to be filed within one month; otherwise, no change to the Advocate Commissioner’s report on the boundary.

Parties to the Case

Appellants / Petitioners

Babu

Respondents

Moni

Legal Representation & Advocates

Counsels for Petitioners

• M.A. Augustine
• Sri. A.R. Nimod

Counsels for Respondents

• Sri. A. Antony
• Smt. Leelamma Antony

Case Synopsis & Summary

This High Court of Kerala, in OP(C) No. 634 of 2020, arises from O.S. No. 219 of 2014 in the Munsiff Court, Kochi, wherein Moni seeks a declaration of the plaint schedule boundaries and a permanent injunction to restrain Babu and his husband from trespassing and obstructing construction of a boundary wall along the northern and eastern sides. The Advocate Commissioner’s report (Ext. C1) and accompanying sketch were not objected to by either party, and evidence had been recorded with the defendant not adducing any evidence. During final hearing, the plaintiff moved to amend the plaint to include the defendant’s property as C Schedule; objections were raised on the ground that Order VI Rule 17 proviso bars amendments after the suit is listed for trial. The amendment was allowed on costs. The petitioner argued that since both parties did not object to the commissioner's report and sketch, the suit could be decreed on that basis, making amendment unwarranted. The respondent argued that the boundary-dispute requires scheduling of both parties’ properties; relied on Nandakumara Varma and the 2015 Varma v. Usha Varma decision to justify amendment. The judge ruled that amendments should be construed liberally, and that trial-stage is not an absolute bar in appropriate circumstances. Accordingly, the petition was allowed in part: amendment to include the respondent’s property as C Schedule was permitted, costs were fixed at Rs. 5,000, and additional written statement was to be filed within one month. Overall, a measured, flexible approach to amendments in boundary suits was taken.

Provisions of Law Cited

Code of Civil Procedure, Order VI Rule 17 (Proviso)

Legal Doctrines & Maxims

Proviso to Order VI Rule 17 CPC not an absolute embargo on amendments; pleadings can be amended liberally in appropriate circumstances.
In boundary suits, it is essential to schedule the properties of both parties in the plaint; failure to do so may affect maintainability.
Trial-stage should not be per se a bar to amendments; liberal construction of amendment applications is permissible.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that since the Advocate Commissioner’s report and sketch were not objected to by either party, the suit could be decreed on that basis, rendering the amendment unnecessary. They further submit that the proviso to Order VI Rule 17 CPC prohibits amendments after the suit is listed for trial, and therefore the amendment should be rejected.

Contentions of Respondents

The respondent contends that amendment was necessary to bring the evidence and relief in line with the actual boundary questions, especially to describe and schedule the properties of both parties. They rely on Nandakumara Varma and Varma v. Usha Varma (2015) KLJ 73 to argue that scheduling of both properties is essential in boundary suits and that pleadings can be amended liberally; the proviso to Order VI Rule 17 is not an absolute embargo.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Nandakumara Varma	—	Positive	Cited as authority for liberal amendment and the evolving position that amendments may be permitted in boundary disputes despite trial-commencement constraints.
Varma and another v. Usha Varma and another	2015 (1) KLJ 73	Positive	Cited for the proposition that scheduling both parties' properties is essential in a boundary suit; supports the amendment to include the defendant’s property.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Babu v. Moni and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943** **OP(C) NO. 634 OF 2020** **OS 219/2014 OF PRINCIPAL MUNSIFF COURT, KOCHI,** ## **ERNAKULAM** ## **PETITIONER/S:** BABU AGED 70 YEARS SON OF KRISHNAN,RESIDENT OF CC 12/755B,KOCHENCHERRY PARAMBU,V.P.ANTONY ROAD, PALLURUTHY NORTH MURI,RAMESWARAM VILLAGE, KOCHI TALUK,PIN-682006. BY ADVS. M.A.AUGUSTINE SRI.A.R.NIMOD ## **RESPONDENT/S:** MONI WIFE OF THUNDIPARAMBIL RAMACHANRAN,RESIDENT OF KOCHANCHERRY PARAMBU,P.ALLURUTHY NORTH MURI, RAMESWARAM VILLAGE,KOCHI TALUK, PIN-682006. BY ADVS. SRI.A.ANTONY SMT.LEELAMMA ANTONY **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(C) NO. 634 OF 2020 -2- ## **JUDGMENT** Dated this the 05[th] day of November, 2021 Petitioner is the defendant in O.S.No.219 of 2014 on the files of the Munsiff's Court, Kochi. The prayer in the suit filed by the respondent is to declare the boundaries of the plaint schedule property in accordance with the plan and report submitted by the Advocate Commissioner, after measuring the property with the assistance of a competent surveyor. The other prayer is for a permanent prohibitory injunction restraining the petitioner and her husband from trespassing and obstructing the construction of the boundary wall on the northern and eastern boundaries of the plaint schedule property. The Advocate Commissioner filed Ext.C1 report along with sketch. Neither of the parties filed objection to the Commissioner's report and sketch. The suit OP(C) NO. 634 OF 2020 -3- was listed for trial on 01.01.2020 and evidence of the plaintiff was recorded and documents marked. The defendant filed memo stating that no evidence is being adduced from the defendant's side. Thereupon, the case was posted for final hearing. At that juncture, the plaintiff filed Ext.P5 application for amending the plaint and including the property of the defendant as C schedule. The petitioner raised objection contending that the attempt of the respondent is to fill up the lacuna in his case and that the proviso to Order VI Rule 17 prohibits consideration of an application for amendment filed after the suit is listed for trial. In spite of the objection, the amendment application was allowed on costs. Hence, the original petition. 2. Heard Sri. Augustine M.A, learned Counsel for the petitioner and Sri.A.Antony, learned Counsel for the respondent. OP(C) NO. 634 OF 2020 -4- 3. Learned Counsel for the petitioner contended that both parties having not objected to the commissioner's report and sketch, the suit could be decreed on the basis of the sketch and in such circumstances, an amendment to the plaint is unwarranted. It is contended that the amendment application filed after commencement of trial ought to have been rejected in view of the prohibition contained in Order VI Rule 17 CPC. 4. Learned Counsel for the respondent submitted that the amendment was necessitated in view of the decision of this Court in _**Nandakumara**_ ## _**Varma and another v. Usha Varma and another [2015**_ _**(1) KLJ 73]**_ holding that for maintaining a suit for fixation of boundary, it is essential to schedule the properties of both parties to the suit. It is contended that the proviso to Order VI Rule 17 is not an absolute embargo and the pleadings can be amendment even at the appellate OP(C) NO. 634 OF 2020 -5- stage. The suit being one for fixation of boundary, it is essential to describe and schedule the properties of both parties in the plaint. Otherwise, the plaintiff will be nonsuited on that ground. Therefore, the respondent had justification in seeking the amendment. 5. It is true that the application for amendment was filed after the suit being listed for trial. In this context, it may be relevant to note that the suit was decreed ex-parte twice and the respondent had even filed an execution petition. Later the ex-parte decree was set aside and in the meanwhile, the legal position with respect to suit for fixation of boundary was laid down by this court as per the decision in _**Nandakumara Varma**_ . It is settled law that applications for amendment should be construed liberally and commencement of trial cannot, under all circumstances, be a reason for dismissing ## OP(C) NO. 634 OF 2020 -6- such applications. In the instant case, the fact that the amendment is essential for maintaining the suit and also for determining the real questions and controversy between the parties cannot be disputed. The petitioner's remedy is to file additional written statement to the amended plaint and raise his all contentions, including the contention that the suit is liable to be decreed based on the commissioner's report and sketch. I also find merit in the contention of the learned Counsel for the petitioner that, considering the stage at which the amendment application was filed, the trial court ought to have imposed exemplary costs. In the result, the original petition is allowed in part by enhancing the cost to Rs.5,000/- (Rupees five thousand only), while declining to interfere with the order, insofar as permission is granted to amend the plaint by including the property of the respondent as OP(C) NO. 634 OF 2020 **==> picture [16 x 8] intentionally omitted <==** plaint C schedule property. The cost shall be paid within two weeks of receipt of a copy of this judgment. The petitioner shall be permitted to file additional written statement within one month of the plaint being amended. Sd/- **V.G.ARUN JUDGE** Scl/05.11 OP(C) NO. 634 OF 2020 -8- ## **APPENDIX OF OP(C) 634/2020** |PETITIONER|EXHIBITS| |---|---| |EXHIBIT P1|COPY OF THE O.S.NO.219 OF 2014 DATED| ||22.5.2014 OF THE COURT OF| ||MUNSIFF,KOCHI| |EXHIBIT P2|COPY OF THE WRITTEN STATEMENT DATED| ||19.8.2019 IN O.S.NO.219 OF 2014 OF THE| ||COURT OF MUNSIFF,KOCHI| |EXHIBIT P3|COPY OF THE COMMISSIONER REPORT DATED| ||29.2.2016 ALONG WITH SKETCH IN| ||O.S.NO.219 OF 2014 OF THE COURT OF| ||MUNSIFF,KOCHI.| |EXHIBIT P4|COPY OF THE ARGUMENT NOTE DATED| ||10.1.2020 FILED BY THE PETITIONER IN| ||O.S.NO.219 OF 2014 OF THE COURT OF| ||MUNSIFF,KOCHI| |EXHIBIT P5|COPY OF THE I.A.2 OF 2020 DATED| ||14.01.2020 FILED BY THE PLAINTIFF IN| ||O.S.NO.219 OF 2014 OF THE COURT OF| ||MUNSIFF,KOCHI| |EXHIBIT P6|COPY OF THE COURT AFFIDAVIT DATED| ||29.01.2020 IN I.A.NO.2 OF 2020 IN| ||O.S.NO.219 OF 2014 OF THE COURT OF| ||MUNSIFF,KOCHI| |EXHIBIT P7|COPY OF THE ORDER IN I.A.NO.2 OF 2020| ||DATED 4.2.2020 IN O.S..NO.219 OF 2014| ||OF THE COURT OF MUNSIFF,KOCHI.|