Celin v. Mariyakutty and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 3[RD] DAY OF JANUARY 2022 / 13TH POUSHA, 1943 OP(C) NO. 653 OF 2021** **I.A.No.1515 of 2019 IN OS 292/2011 OF MUNSIFF'S COURT, THODUPUZHA** ## **PETITIONER/S:** 1 MARIYAKUTTY AGED 81 YEARS W/O. VARKEY, RESIDING AT CHURULIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. 2 SHAJU, AGED 54 YEARS S/O. VARKEY, RESIDING AT CHURULIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. BY ADV G.SREEKUMAR (CHELUR) ## **RESPONDENT/S:** 1 CELIN AGED 51 YEARS W/O. THOMAS, RESIDING IN THE ADDRESS KOOLANIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. 2 GEORGE, AGED 60 YEARS S/O. JOSEPH, RESIDING IN THE ADDRESS KOOLANIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. 3 MARIYAKUTTY, AGED 66 YEARS D/O. JOSEPH, RESIDING IN THE ADDRESS KOOLANIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. 4 THANKAMMA, AGED 62 YEARS W/O. JOSEPH, O.P.(C) Nos. 653 and 1236 of 2021 -2- RESIDING IN THE ADDRESS KOOLANIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. 5 MARIKUTTY, AGED 59 YEARS W/O. JOY, RESIDING AT CHURULIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. 6 JOMI, AGED 30 YEARS D/O. JOY, RESIDING AT CHURULIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. 7 GINI, AGED 26 YEARS D/O. JOY, RESIDING AT CHURULIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. 8 SISTER MERLIN, AGED 50 YEARS D/O. VARKEY MATHAI, RESIDING AT CHURULIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. 9 SISTER LISSA, AGED 59 YEARS D/O. VARKEY MATHAI, RESIDING AT CHURULIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. 10 SISTER RAIT, AGED 55 YEARS D/O. VARKEY MATHAI, RESIDING AT CHURULIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. 11 SANTHOSH, AGED 50 YEARS S/O. VARKEY MATHAI, O.P.(C) Nos. 653 and 1236 of 2021 -3- RESIDING AT CHURULIYIL HOUSE, INCHIYANIKKARA ALAKODE VILLAGE, ANCHIRI P.O.THODUPUZHA, IDUKKI DISTRICT 685 585. R1 TO R4 BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE **THIS OP (CIVIL) HAVING BEEN COME UP FOR ADMISSION ON 03.01.2022, ALONG WITH OPC 1236 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C) Nos. 653 and 1236 of 2021 -4- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 3[RD] DAY OF JANUARY 2022 / 13TH POUSHA, 1943 OP(C) NO. 1236 OF 2021** **I.A No.1515/2019 in OS 292/2011 OF MUNSIFF'S COURT, THODUPUZHA** ## **PETITIONER/S:** 1 CELIN AGED 51 YEARS W/O.THOMAS, KOONANIYIL HOUSE, ANCHIRI K., THODUPUZHA TALUK, ANCHIRI P.O, PIN-685 585. 2 GEORGE S/O.JOSEPH, KOONANIYIL HOUSE, ANCHIRI KARA, ALAKKODE VILLAGE, THODUPUZHA TALUK, ANCHIRI P.O., PIN-685 585. 3 MARIYAKUTTY D/O.JOSEPH, KOONANIYIL HOUSE, ANCHIRI KARA, ALAKKODE VILLAGE, THODUPUZHA TALUK, ANCHIRI P.O., PIN-685 585. 4 THANKAMMA W/O.JOSEPH, KOONANIYIL HOUSE, ANCHIRI KARA, ALAKKODE VILLAGE, THODUPUZHA TALUK, ANCHIRI P.O., PIN-685 585. BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE B.ANUSREE MANU VYASAN PETER ## **RESPONDENT/S:** 1 MARIYAKUTTY AGED 81 YEARS O.P.(C) Nos. 653 and 1236 of 2021 -5- - W/O.VARKEY, CHURULIYIL HOUSE, INCHIYANI KARA, ALAKKODE VILLAGE, ANCHIRI P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685 585. - 2 MARIYAKUTTY JOY W/O.JOY, CHURULIYIL HOUSE, INCHIYANI KARA, ALAKKODE VILLAGE, ANCHIRI P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685 585. - 3 JOMY D/O.LATE JOY, CHURULIYIL HOUSE, INCHIYANI KARA, ALAKKODE VILLAGE, ANCHIRI P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685 585. - 4 GINI D/O.LATE JOY, CHURULIYIL HOUSE, INCHIYANI KARA, ALAKKODE VILLAGE, ANCHIRI P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685 585. - 5 MERLIN D/O.LATE VARKEY MATHAI, CHURULIYIL HOUSE, INCHIYANI KARA, ALAKKODE VILLAGE, ANCHIRI P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685 585. - 6 LIZZA D/O.LATE VARKEY MATHAI, CHURULIYIL HOUSE, INCHIYANI KARA, ALAKKODE VILLAGE, ANCHIRI P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685 585. - 7 RAIT D/O.LATE VARKEY MATHAI, CHURULIYIL HOUSE, INCHIYANI KARA, ALAKKODE VILLAGE, ANCHIRI P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685 585. - 8 SHAJU S/O.LATE VARKEY MATHAI, CHURULIYIL HOUSE, INCHIYANI KARA, ALAKKODE VILLAGE, ANCHIRI P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685 585. - 9 SANTHOSH D/O.LATE VARKEY MATHAI, CHURULIYIL HOUSE, INCHIYANI KARA, ALAKKODE VILLAGE, ANCHIRI P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685 585. BY ADV G.SREEKUMAR (CHELUR) R1-R8 **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C) Nos. 653 and 1236 of 2021 -6- ## **JUDGMENT** Dated this the 3[rd] day of January, 2022 The challenge in these original petitions is against the order in I.A.No.1515 of 2019 in O.S.No.292 of 2011 by which the Munsiff's Court, Thoduppuzha partly allowed an application for amendment filed by the plaintiffs. O.P.(C) No.1236 of 2021 is filed by the plaintiffs, aggrieved by the rejection of a portion of their prayer for amendment and O.P.(C) No.653 of 2021, by defendants 2 and 9, aggrieved by the order, to the extent it allows one portion of the amendment. The suit is for fixation of boundary of plaint A schedule property, consequential injunction and recovery of plaint C schedule property. As per the averments in the plaint, A schedule property, having an extent of 1 Acre 59 cents, is in the exclusive possession and ownership of the plaintiffs. Plaint B schedule, ## O.P.(C) Nos. 653 and 1236 of 2021 -7- having an extent of approximately 2.5 Acres belonging to the defendants is lying adjacent to plaint A schedule. Plaint C schedule is a portion of A schedule allegedly encroached by the defendants. The defendants filed written statement contending that the plaintiffs are having possession and enjoyment of only 58.87 Ares and as per title deeds, the actual extent of B schedule is 2.61 Acres. It is contended that during re-survey, the extent of B schedule is mistakenly noted as 92.38 Ares. On coming to know about this, defendants filed an application for rectifying the mistake. According to the defendants, the suit is filed raising a false claim over the western portion of B schedule with the malicious intention of snatching that portion, capitalizing on a mistake in the resurvey. It is contended that the boundary between A and B schedule is clearly demarcated and there is no need for fixation of boundary. ## O.P.(C) Nos. 653 and 1236 of 2021 -8- 2. Pending the suit, plaintiffs moved I.A.No.1 of 2020 seeking permission to cut down the trees in plaint C schedule property under the supervision of an Advocate Commissioner. It is alleged that the trees are standing in a dangerous condition and unless cut immediately, will cause injuries to the plaintiffs. The application was dismissed holding that the plaintiffs had failed to convince the court that the trees are posing imminent threat. Aggrieved, the plaintiffs filed O.P.(C) No.1474 of 2020 and by judgment dated 04.03.2021, the original petition was disposed of, directing the trial court to decide the suit within one month. Meanwhile, the trial court had passed the impugned order in I.A.No.1515 of 2019. 3. Heard. 4. Indisputably, the application for amendment was filed after closure of evidence. According to the plaintiffs, an Advocate O.P.(C) Nos. 653 and 1236 of 2021 -9- Commissioner was appointed only after the evidence was over and when the Commissioner filed the report, it became imperative to amend the plaint. In the application under Order VI Rule 17, the matters to be amended are stated as under; _“1. In line number three of paragraph number three of the plaint after the word Thodupuzha the word "and sale deed No.123/1993 of Karikode "may be allowed to be added._ _2. In line number 1 and 2 of paragraph number 5 of the plaint the figures "2.5, 251/1, and 252/2 " may be permitted to be deleted and in that place the figures "2.30 and 243/2" respectively may be permitted to be added._ _3. In the schedule of plaint, B schedule, the figures appearing after survey numbers and hectare may be permitted to be deleted and in that place the figures 243/2 and 2.30, may be allowed to be added. So also the extent and survey numbers from the description may be deleted and in that place the figures 2.30 and 243/2 may be permitted to be added.”_ 5. The defendants filed objection contending that the amendment application is hit by the proviso to Order VI Rule 17. It was stated that the first item sought to be added in the plaint is a fresh document about which no mention is made in the plaint, but was produced along O.P.(C) Nos. 653 and 1236 of 2021 -10- with the chief affidavit of PW1. The plaintiffs are cunningly trying to introduce new facts in the guise of the amendment, which according to them, was necessitated pursuant to filing of the commission report. As regards the other amendments, it was pointed out that the correct re-survey number was mentioned in the proof affidavit and the plaintiffs were cross-examined based on the correct number, but no timely attempt to correct the mistake was made and hence, those amendments are also liable to be rejected. 6. By the impugned order, trial court allowed the first item of amendment holding that the prayer for adding sale deed No.123 of 1993 in the plaint after the word 'Thodupuzha' was not objected by the respondent during hearing. That, the plaintiffs had already produced the documents along with their chief affidavit and the respondent had not objected to it. The second O.P.(C) Nos. 653 and 1236 of 2021 -11- amendment was rejected based on the finding that the plaintiffs had not explained the reason for adding survey number 243/2 and for showing 2.30 Acres as the total extent of plaint B schedule property. The court also found fault with the plaintiffs for their failure to state specific reasons for not seeking the amendment before commencement of trial. 7. Learned Counsel for the petitioner contended that, having failed to object to the production of sale deed NO.123 of 1993 and the prayer for amendment based on the document, the defendants cannot challenge that portion of the order by which the amendment was allowed. As regards the second part of the amendment, it is submitted that the correct survey number had been stated in the proof affidavit filed in lieu of chief examination and the defendants had crossexamined based on the correct number. Hence, adding that number will not cause any prejudice ## O.P.(C) Nos. 653 and 1236 of 2021 -12- to the defendants and hence, trial court had committed a gross illegality in rejecting the amendment on the premise that the plaintiffs had not stated specific reasons for not seeking the amendment prior to commencement of trial. 8. Learned Counsel for the defendants contended that the observation in the impugned order that the defendants had not objected to the amendment with respect to the document number is factually incorrect, as discernible from a reading of the written objections. It is contended that absolutely no reason is stated in the affidavit filed along with the amendment application about the purpose for incorporating the document number in the plaint and further, no explanation is offered for seeking amendment after closure of trial. 9. I find _prima facie_ merit in the submission that the finding in the impugned order that the defendants had not objected to the O.P.(C) Nos. 653 and 1236 of 2021 -13- amendment is not correct, since a perusal of the objection to the amendment application shows otherwise. I also find merit in the contention that the application for amendment having been filed after closure of evidence, trial court was bound to consider the impact of the proviso to Order VI Rule 17 of CPC, which interdicts the court from allowing an application for amendment filed after commencement of trial, unless the court comes to the conclusion that, in spite of due diligence, the party could not have moved for amendment earlier. The legal position is no longer _res integra_ in view of the decision in _**Sasikala T.V v. C.P.Joseph [2021 (1) KHC 23]**_ . For the aforementioned reasons, I am constrained to set aside the impugned order. In the result, the original petitions are allowed. The order in I.A.No.1515 of 2019 in O.S.No.292 of 2011 is set aside. The trial court ## O.P.(C) Nos. 653 and 1236 of 2021 **==> picture [23 x 8] intentionally omitted <==** is directed to consider the application for amendment afresh and to pass a reasoned order thereon, after affording an opportunity of hearing to the parties and after considering the impact of the proviso to Order VI Rule 17 and the decision in _**T.V.Sasikala** (supra)._ Being a suit of the year 2011, the order as directed above shall be passed within one month of receipt of copy of this judgment and the suit disposed of, within a further period of one month. Sd/- ## **V.G.ARUN JUDGE** Scl/ O.P.(C) Nos. 653 and 1236 of 2021 -15- ## **APPENDIX OF OP(C) 653/2021** ## PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE PLAINT I O S NO. 292 OF 11 ON TH FILE OF THE MUNSIFF COURT, THODUPUZHA FILED DATED 21.11.11. EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT OF THE DEFENDANT ORIGINALLY FILED IN EXT P1 SUIT DATED 29.9.14. EXHIBIT P3 A TRUE COPY OF THE ORIGINAL PETITION FILED BEFORE THIS HONBLE COURT AS O P NO. 1471 OF 20 DATED 29.9.20. EXHIBIT P4 A TRUE COPY OF THE I A NO. 1515 OF 19 IN O S NO. 292 OF 11 ON THE FILE OF THE MUNSIFF COURT, THODUPUZHA DATED 15.11.19. EXHIBIT P5 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONERS HEREIN TO EXT P4 DATED 26.11.19. EXHIBIT P6 A TRUE COPY OF THE ORDER PASSED IN I A NO. 1515 OF 19 IN O S NO. 292 OF 11 ON THE FILE OF THE MUNSIFF COURT, THODUPUZHA DATED 16.2.2021. O.P.(C) Nos. 653 and 1236 of 2021 -16- ## **APPENDIX OF OP(C) 1236/2021** ## PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AMENDED PLAINT DATED 21/11/2011 IN OS NO.292/2011 ON THE FILES OF MUNSIFF'S COURT, THODUPUZHA. Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT T DATED 29/9/2004 IN OS NO.292/2011 ON THE FILES OF MUNSIFF'S COURT, THODUPUZHA. Exhibit P3 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT DATED 19/08/2013 IN OS NO.292/2011 ON THE FILES OF MUNSIFF'S COURT, THODUPUZHA. Exhibit P4 TRUE COPY OF THE COMMISSION REPORT AND SKETCH DATED 1/11/2019 IN IA NO.1295/2018 IN OS NO.292/2011 ON THE FILES OF MUNSIFF'S COURT, THODUPUZHA. Exhibit P5 TRUE COPY OF THE IA NO.1515/2019 DATED 15/11/2019 IN OS NO.292/2011 ON THE FILES OF MUNSIFF'S COURT, THODUPUZHA. Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 26/11/2019 IN IA NO.1515/2019 DATED 15/11/2019 IN OS NO.292/2011 ON THE FILES OF MUNSIFF'S COURT, THODUPUZHA. Exhibit P7 TRUE COPY OF THE ORDER DATED 16/2/2021 IN IA NO.1515/2019 DATED 15/11/2019 IN OS NO.292/2011 ON THE FILES OF MUNSIFF'S COURT, THODUPUZHA.