High Court of KeralaSingle Judge2014-03-12Original Petition allowed; IA 977/2010 allowed;...

Bindu vs. Aripurath Thachattu Chandran Nair and Puspaveni M.K.

Case / Petition Number:OP(C) No.199 of 2010 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhamed Mustaque
Judgment Date: 2014-03-12
Court Decision / Holding: IA 977/2010 in O.S.586 of 2008 allowed; original petition allowed; court to give rejoinder to plaintiffs; opportunity to adduce evidence, including a local inspection commission if required to meet the amendment.
Final Disposition: Original Petition allowed; IA 977/2010 allowed; court to permit rejoinder and allow evidence including local inspection if required to meet the amendment.

Parties to the Case

Appellants / Petitioners

Bindu

Respondents

Aripurath Thachattu Chandran Nair S/O Kallyani Amma
Pushpaveni M.K.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K.M. Firoz

Counsels for Respondents

• Sri. P.V. Kunhikrishnan

Case Synopsis & Summary

This original petition (OP(C) No.199 of 2010) challenges the order on I.A.977/2010 in O.S.586 of 2008 before the Principal Munsiff’s Court-I, Kozhikode. The suit seeks a declaration and an injunction restraining the defendant (the petitioner) from trespassing into the plaint A schedule property or using it as a pathway. At trial, the defendant moved to amend the written statement to contend that the plaintiffs have no right over the plaint schedule property. The Munsiff dismissed the amendment on the ground that admitting a right of easement by necessity in the written statement would amount to admitting plaintiffs’ rights, and the Commissioner’s report did not indicate the pathway lies outside the plaint property. Challenging this, the petitioner argues the amendment is necessary to determine the real dispute. The High Court analyzed whether an amendment withdrawing an admission is permissible, noting established law that amendments are often allowed to determine real issues (citing Malla Reddy, Revajeetu) and that admissions are statements under Section 17 of the Indian Evidence Act; however, title cannot be conferred or taken away by such statements. The Court ultimately held that an admission can be withdrawn by amendment, distinguishing prior ruling in Girish v. Janaki where withdrawal of an admission was not permitted. Consequently, the petition is allowed: IA 977/2010 is permitted, the plaintiffs may file a rejoinder, and evidence (including a local inspection commission) may be adduced if required to meet the amendment.”

Provisions of Law Cited

CPC, Order VI Rule 17 (Proviso)Section 17, Indian Evidence Act, 1872

Legal Doctrines & Maxims

An admission is a statement under Section 17 of the Indian Evidence Act, 1872.
Titles cannot be conferred or taken away by statements/admissions; admissions can be corrected or withdrawn.
Amendment of pleadings is intended to determine the real issues in controversy.
Courts may be liberal in allowing amendments to written statements (less prejudice than with plaints).
If amendment is required for determination of the real dispute, it should be allowed irrespective of the stated reasons in the application.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that amendment to the written statement is necessary to determine the real dispute regarding rights over the plaint schedule property. The amendment seeks to withdraw an alleged admission that might restrict the defendant’s position, and the court should allow modification to decide all points on the cause of action, including the question of title and easement by necessity, especially since the Commissioner’s report does not conclusively place the pathway within the plaint A schedule. The liberal approach to amendments in written statements, as supported by case law, supports allowing the amendment to enable proper adjudication of the dispute.

Contentions of Respondents

The respondents rely on established decisions which hold that amendments cannot withdraw admissions that affect admissions of title, citing Girish v. Janaki and Others. They contend that allowing withdrawal of such an admission would prejudice plaintiffs and alter the substantive rights conferred by pleadings. They urge that the amendment should not be permitted if it effectively negates admitted facts earlier pleaded by the defendant.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Girish v. Janaki and Others	2014(1) KHC 364	Distinguished	The present judgment permits withdrawal of an admission by amendment, which distinguishes its stance from Girish v. Janaki, a case that held such withdrawal cannot be allowed.
Malla Reddy v. Future Builders Cooperative Housing Society	2013(2) KLT Suppl.45(SC)	Mentioned Only	Cited to acknowledge settled law on amendments/real issues, but not applied as the central rule in this case.
Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others	2009 (4) KLT Suppl. 1082(SC)	Mentioned Only	Cited as part of the settled law on amendments and real issues, not binding on the precise question of withdrawing an admission by amendment.
Ruhaila Beev v. Suvarna Satyam	2011(4) KLT Suppl. 14(Ker)	Positive	Supported liberal amendment to written statements, indicating courts may be liberal in allowing amendments to determine real issues.
Rahima Ummal Sara Ummal v. Sarasamma	2012(4) KLT SN 48	Positive	Cited for similar views; supports correcting or withdrawing admissions through amendment in appropriate circumstances.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **WEDNESDAY, THE 12TH DAY OF MARCH 2014/21ST PHALGUNA, 1935** ## **OP(C).No. 199 of 2010 (O)** **-------------------------I.A. NO. 977/2010 IN OS.NO. 586/2008 OF PRINCIPAL MUNSIFF COURT-I, KOZHIKODE --------------------** **PETITIONER :** **--------------------** **BINDU, AGED 32 YEARS, W/O.MADHAVAN, PARAKANDI HOUSE, VAZHIPOKKIL KANNANKARA AMSOM, KANDANNOOR DESOM, KOZHIKODE TALUK.** ## **BY ADV. SRI.K.M.FIROZ** **RESPONDENT :** **-----------------------** **1. ARIPURATH THACHATTU CHANDRAN NAIR S/O.KALLYANI AMMA, AGED 53 YEARS, REPRESENTED BY POWER OF ATTORNEY HOLDER E. LATHA,** **AGED 38 YEARS, W/O.CHANDRAN NAIR, THACHATTU, "KAIRALI" HOUSE, THAMARASSERY AMSOM, MARUTHAD DESOM, KOZHIKODE-678 001.** **2. PUSHPAVENI M.K., AGED 48 YEARS, W/O.BHASKARAN NAIR, THACHATTU, "AISWARYA" HOUSE THAMARASSERY AMSOM, MARUTHAD DESOM,** **KOZHIKODE-678 001.** **R1 & R2 BY ADV. SRI.P.V.KUNHIKRISHNAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2014, THE COURT ON 12-03-2014 DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **OP(C).No. 199 of 2010 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **EXT.P1 : COPY OF THE PLAINT DATED 11.11.2008 IN OS NO. 586 OF 2008 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE.** **EXT.P2 COPY OF WRITTEN STATEMENT DATED 11.3.2009 IN OS NO. 586 OF 2008 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE.** - **EXT.P3 COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 11.11.2009 IN OS NO. 586 OF 2008 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE.** **EXT.P3(a) COPY OF THE SKETCH OF THE ADVOCATE COMMISSIONER DATED 5.11.2009 IN OS NO. 586 OF 2008 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE.** - **EXT.P4 COPY OF THE AFFIDAVIT IN SUPPORT OF I.A. NO. 31 OF 2010 SUBMITTED BY THE PETITIONER IN OS NO.586 OF 2008 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE.** - **EXT.P5 COPY OF THE AFFIDAVIT IN SUPPORT OF AMENDMENT APPLICATION IA NO. 977 OF 2010 DATED 16.2.2010 IN OS NO. 586 OF 2008 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE.** **EXT.P6 COPY OF THE AFFIDAVIT IN SUPPORT OF IA NO. 976 OF 2010 DATED 16.2.2010 IN OS NO. 586 OF 2008 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE.** **EXT.P7 COPY OF THE ORDER DATED 8.7.2010 IN AMENDMENT APPLICATION IA NO. 977 OF 2010 IN OS NO. 586 OF 2008 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-I, KOZHIKODE.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **A.MUHAMED MUSTAQUE, J.** ---------------------------------------------- O.P.(C) No.199 of 2010 ---------------------------------------------Dated this the 12[th] day of March, 2014 ## **JUDGMENT** This original petition is filed challenging the order in I.A.No.977 of 2010 in O.S.No.586 of 2008 on the file of the Principal Munsiff's Court-I, Kozhikode. The defendant in the suit is the petitioner and the respondents herein are the plaintiffs. The suit is for declaration and consequential injunction restraining the defendant from trespassing into plaint A schedule property or to use any portion of it as a way. 2. When the case was posted for trial, the defendant filed an amendment application to amend the written statement. The defendant sought amendment to the effect that plaintiffs have no right over the plaint schedule property. This version of the defendant appears to have been made with reference to the report submitted by the Commissioner on the matter. The learned Munsiff dismissed the application on the ground that the defendant had set up right of easement by necessity in the written statement which would amount to O.P.(C) No.199 of 2010 2 admitting the right of the plaintiffs over the plaint schedule property and therefore, such right cannot be taken away by way of amendment. It is also noted by the learned Munsiff that the Commissioner has not stated that pathway to the petitioner is outside the plaint A schedule property. Therefore, the learned Munsiff dismissed the application. Challenging the order, this original petition is filed. 3. Heard the learned counsel of the petitioner and the respondents. 4. The application for amendment was filed at the time when the case was posted for trial. The defendant also had filed an application in terms of proviso to Order VI Rule 17 of the Code of Civil Procedure to condone delay occurred in filing the application for amendment. However, there is no reference of the above application in the impugned order. This Court, on verification through the Registry, obtained a report and finds that the said application has been allowed as per the order in I.A.No.976 of 2010 on 28.05.2010. O.P.(C) No.199 of 2010 3 5. Therefore, the only question now remains is whether amendment is necessary for the purpose of determining the real question in controversy between the parties. The learned counsel for the respondents/plaintiffs relied upon the judgment of this Court in **Girish v. Janaki and Others** [2014(1) KHC 364], wherein it was held that if the proposed amendment is meant to take away admission already made by the defendant in the written statement, such amendment cannot be permitted. It is true the position of the law as such is settled through various pronouncements of this Court and Hon'ble Supreme Court in **Malla Reddy v. Future Builders Cooperative Housing Society** [2013(2) KLT Suppl.45(SC)] and **Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others** [2009 (4) KLT Suppl. 1082(SC)]. However, the question in this case is, can an admission of title alleged to have been made in the written statement be withdrawn by way of amendment. 6. An admission is a statement, which suggests any inference as to any fact in issue or relevant fact as laid down O.P.(C) No.199 of 2010 4 under Section 17 of Indian Evidence Act, 1872. Title over the property cannot be conferred or taken away by a statement made by the party. Therefore, any such statement can be withdrawn or can be corrected. Such admission, if any, always open to be corrected and by virtue of such correction, no prejudice is caused nor it will take away right of the petitioner if any over the property, see for similar views - judgment of this Court in **Rahima Ummal Sara Ummal v. Sarasamma** [2012(4) KLT SN 48]. The court below also found that reason for seeking amendment relied by the defendant with reference to the commission report is incorrect. When an application for amendment is filed, court below has to look into whether amendment is required for determining real issue in controversy. The court below need not embark upon an enquiry as to the veracity of the reasons stated in such application. If amendment is required for the determination of the real dispute in controversy, then application has to be allowed irrespective of the reasons on which the amendment is necessitated. Object of such amendment is to give O.P.(C) No.199 of 2010 5 opportunity to the parties to have decision on all point based on a cause of action. Therefore, this Court is of the view merely because the reason for amendment has been found untenable, dismissal of application is unwarranted. In **Ruhaila Beev** i **v. Suvarna Satyam** [2011(4) KLT Suppl. 14(Ker)], it is held that, in case of amendment of a written statement, Courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case. Therefore, this Court is of the view the application filed by the petitioner/defendant as per I.A.No.977 of 2010 is liable to be allowed. In the result, this original petition is allowed with the following directions: 1. I.A.No.977 of 2010 in O.S.No.586 of 2008 on the file of the Principal Munsiff Court-I, Kozhikode is allowed. 2. The court below shall give an opportunity to the plaintiffs to file rejoinder. The plaintiff shall O.P.(C) No.199 of 2010 6 also be given an opportunity to adduce evidence including taking out a Commission for local inspection, if required, to meet the plea raised by the defendant by way of amendment. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ln /True copy/ P.A.to Judge