Balamani Amma v. Rema and Others

**OP(C) NO. 1314 OF 2020** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 8[TH] DAY OF JUNE 2022 / 18TH JYAISHTA, 1944 OP(C) NO. 1314 OF 2020** **AGAINST THE ORDERin I.A NO.7683/2018 IN O.S. 862/2010 OF** ## **MUNSIFF COURT,CHAVAKKAD** ## **PETITIONER/PETITIONER/PLAINTIFF:** BALAMANI AMMA AGED 82 YEARS W/O CHALIL PUTHENVEETTIL NARAYANAN KUTTY NAIR, KADAVALLOOR VILLAGE, KURUVADAL DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT-680 582. BY ADVS. AJEESH K.SASI SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.V.C.SARATH SRI.VIPIN NARAYAN SMT.POOJA PANKAJ SRUTHY N. BHAT SHRI.ABEL TOM BENNY SMT.KIRAN ANTONY ## **RESPONDENTS/RESPONDENTS 2 TO 5/DEFENDANTS 2 TO 5:** 1 REMA AGED 56 YEARS W/O BALAKRISHNAN NAIR, KADAVALLOOR VILLEGE, KURUVADAL DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT-680 582. 2 RADHA LAKSHMIKUTTY, AGED 40 YEARS D/O BALAKRISHNAN NAIR, KADAVALLOOR VILLEGE, KURUVADAL DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT-680 582. **OP(C) NO. 1314 OF 2020** **2** 3 SUJATHA, AGED 38 YEARS D/O BALAKRISHNAN NAIR, KADAVALLOOR VILLEGE, KURUVADAL DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT-680 582. 4 LATHA, AGED 36 YEARS D/O BALAKRISHNAN NAIR, KADAVALLOOR VILLEGE, KURUVADAL DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT-680 582. BY ADV SRI.V.A.VINOD THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) NO. 1314 OF 2020** **3** ## **JUDGMENT** The original petition is filed, to set aside the order in I.A No.7683/2018 in O.S No.862/2010 (Ext.P5) passed by the Court of the Munsiff, Chavakkad. 2. The concise case of the petitioner in the memorandum of original petition is that, she is the plaintiff in the above suit, which is filed seeking a decree for a permanent prohibitory injunction to restrain the respondents from encroaching into item Nos.1 and 2 plaint schedule properties. She is the owner of the plaint schedule properties and the respondents do not have any right over the same. However, on 19.10.2010, the respondents, by influencing the survey officials, have encroached into the northern side of Item No.1 plaint schedule property and caused obstruction to Item No.2 plaint schedule pathway. They have threatened the petitioner that they would annexe some portion of item No.1 and would not permit her to use Item No.2. **OP(C) NO. 1314 OF 2020** **4** Therefore, the petitioner was constrained to file Ext.P1 suit. The respondents have resisted the suit by filing Ext.P2 written statement. While the petitioner was away in connection with the treatment of her daughter, the respondents have erected concrete slabs on item No.2. Even though the petitioner has requested for the removal of the obstruction, the respondents have not adhered to the same. Therefore, the petitioner was constrained to file Ext.P3 application, seeking leave to amend the plaint to incorporate additional pleadings and a prayer for a mandatory injunction. The respondents have objected to Ext.P3 application by filing Ext.P4 counter affidavit. Nonetheless, the court below, without appreciating the crux of the matter, has by Ext.P5 order dismissed Ext.P3. Ext.P5 is erroneous and wrong. Hence the original petition. 3. Heard; Sri.Ajeesh K.Sasi, the learned counsel appearing for the petitioner and Sri.V.A.Vinod, the learned **OP(C) NO. 1314 OF 2020** **5** counsel appearing for the respondents. 4. The short point that arises for consideration in this original petition is whether there is any illegality or irregularity in Ext.P5 order? 5. Ext.P1 suit is filed seeking a decree for a permanent prohibitory injunction against the respondents. It is the specific case of the petitioner in Ext.P3 affidavit in support of the application that, the respondents have encroached into item No.2 pathway and erected concrete slabs therein. Therefore, she has sought for an additional relief i.e, a decree of mandatory injunction. This has been objected to by the respondents by filing Ext.P4. The Trial Court has, on the premise that the respondents have not proved the facts mentioned in the affidavit in support of Ext.P3, dismissed the application. I find Ext.P5 order to be cryptic and not adverting to any of the contentions raised by the parties in Exts.P2 and P3. **OP(C) NO. 1314 OF 2020** **6** 6. It is well settled in a plethora of decisions that application seeking leave to amend the pleadings is to be liberally considered. 7. This Court in **Abraham v. Mathai and others** [2021 (1) KHC 441] has even gone on to the extent of holding that, if there is an arguable question whether the new relief sought for by the plaintiff by way of amendment is barred by limitation, the application granting leave to amend the pleadings can be allowed after saving the question of limitation to be agitated and adjudicated by the Trial Court. 8. Undisputedly, the trial in the case has not commenced. Therefore, going by the well settled principles of law under Order VI Rule 17 of the Code of Civil Procedure, and the assertions in the affidavit in support of Ext.P3 and that the matters sought to be **OP(C) NO. 1314 OF 2020** **7** incorporated by way of amendment are mattes of evidence, and further to avoid unnecessary multiplicity of proceedings, I am of the definite view that Ext.P3 application is to be allowed subject to the right of the respondents to file their additional written statement to the amended plaint and raising all contentions including the defence of limitation. The court below shall in its wisdom decide whether the petitioner is entitled to the reliefs sought for in the suit, after appreciating the pleadings and materials on record. Therefore, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I set aside Ext.P5 order and allow Ext.P3 application, granting leave to the petitioner to amend the pleadings subject to the right of the respondents to file their additional written and also raising the defence of limitation. Taking note of the fact that the suit is of the year 2010 and that the petitioner is a senior citizen, who is aged 84 years now, I am of the firm view that the Trial Court shall give priority to the disposal of the **OP(C) NO. 1314 OF 2020** **8** above suit. In the result, the original petition is allowed in the following manner:- - (i) Ext.P5 order is set aside. (ii) Ext.P3 application is allowed. (iii) The petitioner shall carry out the amendment within 14 days after the receipt of a copy of this judgment. (iv) The respondents may file their additional written statement to the amended plaint, within a further time period of one month. (v) The Trial Court shall make every endeavour to dispose of O.S.No.862/2010, in accordance with law, as expeditiously as possible, at any rate, on or before 2.9.2022. **Sd/-C.S.DIAS** **JUDGE** ma/8.6.2022 **OP(C) NO. 1314 OF 2020** **9** ## **APPENDIX OF OP(C) 1314/2020** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE PLAINT IN OS NO 862/2010 OF THE COURT OF THE MUNSIFF CHAVAKKAD EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT IN OS NO 862/2010 OF THE COURT OF THE COURT OF THE MUNSIFF CHAVAKKAD EXHIBIT P3 A TRUE COPY OF THE IA NO 7683/2018 DATED 23.10.2018 IN OS NO 862/2010 FILED BY THE PETITIONER EXHIBIT P4 A TRUE COPY OF THE OBJECTION DATED 4.2.2019 FILED BY THE RESPONDENTS IN IA NO 7683 OF 2018 EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 19.3.2020 IN A NO 7683/2018 IN OS NO 862/2010 OF THE COURT OF MUNSIFF, CHAVAKKAD