Chandran v. Ramachandran s/o Munveettill Narayanan and Sunil @ Sunilkumar

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942** ## **OP(C).No.1343 OF 2019** **AGAINST I.A.NO.1678 OF 2019 AND I.A.NO.1679 OF 2019 IN OS 536/1995 OF ADDITIONAL MUNSIFF COURT ,IRINJALAKUDA** ## **PETITIONER:** **CHANDRAN AGED 79 YEARS S/O. MELEPARAMBIL VELAPPAN, KARALAM VILLAGE, DESOM, KARALAM P.O., TRICHUR-680 711** **BY ADVS. SRI.T.M.CHANDRAN SRI.S.SUJITH** ## **RESPONDENTS:** **1 RAMACHANDRAN S/O. MUNVEETTIL NARAYANAN, KARALAM P.O., TRICHUR-680 711** **2 SUNIL @ SUNILKUMAR, S/O. KOLLARA RAGHVAN, CHIRAKKAL VILLAGE, P.O.PAZHUVIL, TRICHUR-680 564** ## **R1 BY ADV. SRI.K.G.BALASUBRAMANIAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11-11-2020, THE COURT ON 13-11-2020 DELIVERED THE FOLLOWING:** O.P.(C) No.1343/2019 2 **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ O.P.(C) No.1343 of 2019 ------------------------------------------------Dated this the 13[th] day of November, 2020 ## **J U D G M E N T** The plaintiff in the suit is an octogenarian now. The first defendant is now a septuagenarian. The suit is of the year 1995. Still, there is no sign of attaining finality to the litigation. 2. One of the reliefs prayed for in the suit is granting a decree for recovery of possession of property. It is the second round of litigation in the trial court. The suit was earlier decreed in part by the trial court. The second appeal filed before this Court by the first defendant was disposed of by remanding the suit to the trial court with a direction to identify the extent of the property owned by the plaintiff which is alleged to be in the possession of the defendants by issuing a new commission with the assistance of a surveyor. This Court also directed the trial court to dispose of the suit within a period of four months from 3 O.P.(C) No.1343/2019 the date of receipt of a copy of the judgment in the second appeal. 3. After the remand of the suit, the commissioner measured the properties with the assistance of a surveyor and filed report and plan. Thereafter, the plaintiff filed an application as I.A.No.1678/2019 (Ext.P1) in the trial court under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short 'the Code') for amendment of the plaint. The prayer in that application was for amendment of the description of the property given in the B schedule of the plaint, which is sought to be recovered from the possession of the defendants, in accordance with the report and plan filed by the commissioner. 4. The plaintiff also filed another application as I.A.No.1679/2019 (Ext.P3) in the trial court with a prayer to remit the report of the commissioner. 5. As per Ext.P2 order dated 11.04.2019, the trial court dismissed Ext.P1 application. On the same day, as per Ext.P4 order, the trial court also dismissed Ext.P3 application. 6. The plaintiff has filed this original petition under Article O.P.(C) No.1343/2019 4 227 of the Constitution of India challenging the legality and propriety of Exts.P2 and P4 orders. 7. Heard learned counsel for the petitioner and also the first respondent. 8. The operative portion of Ext.P2 reads as follows: _“Hon'ble High Court remanded the case with specific direction that this court shall expedite the disposal of the suit within a time schedule of four months from the date of receipt of a copy of the judgment. The judgment was received on 15-1-19. The vacation starts and the court closes for vacation on 12-4-19. This application is filed on 10-4-2019. The commissioner filed report on 12-3-19. Plaintiff did not file application for amendment till the last moment. The application is highly belated. More than amendment based on report of commissioner, another amendment as regards boundary is also sought.”_ 9. The operative portion of Ext.P4 order reads as follows: _“The advocate commissioner filed report with plan on 12-3-19. This application is filed on 10-4-19. Hon'ble High Court remanded this case ordering that this court shall expedite the disposal of the suit within a time schedule of four months from the date of receipt of a copy of the judgment._ O.P.(C) No.1343/2019 5 _The judgment was received on 15-1-19. The court closes for vacation on 12-4-19. This application is filed on 10-4-19. Petitioner did not file this application till the last moment. The surveyor was examined on 21-3-19 itself. This application is highly belated.”_ 10. The trial court has dismissed Exts.P1 and P3 applications solely on the ground of the delay in filing them. 11. An application for amendment of the plaint can be entertained and allowed by the court at any stage of the proceedings subject to the provision contained in the proviso to Order VI Rule 17 of the Code. The proviso appended to Order VI Rule 17 of the Code was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force with effect from 01.07.2002. It states that, no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso to Order VI Rule 17 of the Code is not applicable to cases which were pending and filed before the amendment came into effect (See **State Bank of Hyderabad v. Town Municipal** O.P.(C) No.1343/2019 6 **Council : (2007) 1 SCC 765** ). The suit, in the instant case, was filed as early as in the year 1995. Therefore, the proviso to Order VI Rule 17 of the Code has no application to the case. 12. The dismissal of Ext.P3 application by the trial court solely on the ground of delay, without considering its merits, was also not proper. 13. It appears from the impugned orders that the trial court was very anxious to dispose of the suit within the time limit fixed by this Court and it is the main reason for dismissing the applications filed by the plaintiff, without considering their merits. 14. In **Bablu Kumar v. State of Bihar : (2015) 8 SCC 787** , the Supreme Court had occasion to observe as follows: _“Because at one point of time, the High Court had directed for finalisation of trial within a fixed duration and the learned Trial Judge, in all possibility, harboured the impression that even if the prosecution witnesses had not been served the notice to depose in Court, and the prosecution had not taken any affirmative steps to make them available for adducing evidence in Court, yet he must conclude the trial by the target date as if it is a mechanical and routine act. The learned Trial Judge,_ O.P.(C) No.1343/2019 7 _as it appears to us, has totally forgotten that he could have asked for extension of time from the ” High Court ._ (emphasis supplied) 15. The aforesaid observations were made by the Apex Court in the context of disposal of a criminal case. But, the observations are equally applicable to disposal of civil cases. The mere fact that the High Court has fixed a time limit for the disposal of a case does not mean that the lower court shall dispose of the case in a mechanical way. The lower court shall make every endeavour to dispose of the case within the time frame fixed by the High Court. If, for any reason, the lower court finds it unable or impossible to dispose of the case within the time limit fixed by the High Court, the proper procedure is to address the High Court for extension of time for disposing the case. The fact that the High Court has fixed a time limit for the disposal of a case, by itself, is not a sufficient ground to reject the applications filed by the parties, without considering the merits. O.P.(C) No.1343/2019 8 16. Earlier, in **Saibinnisha v. Abdul Vahab : 2018 (3) KHC 818 : 2018 (3) KLT 449** , a Division Bench of this Court had occasion to remind the lower courts the above aspects. 17. The discussion above leads to the conclusion that Exts.P2 and P4 orders warrant interference by this Court for the reason that the trial court failed to consider the merits of Exts.P1 and P3 applications. 18. Consequently, the original petition is allowed. Exts.P2 and P4 orders are set aside. Exts.P1 and P3 applications filed by the plaintiff are restored to the file of the trial court. The trial court shall consider these applications afresh and dispose of them in accordance with law, within a period of one month from the date of production of a certified copy of this judgment before it by any of the parties to the suit. Needless to state that, in case the application for amendment of the plaint is allowed by the trial court, it shall grant sufficient opportunity to the defendants to file additional written statement. ## (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** **jsr** O.P.(C) No.1343/2019 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PETITION IA NO.1678 OF 2019** **EXHIBIT P2 TRUE COPY OF ORDER DATED 11.4.2019 IN IA 1678/19** **EXHIBIT P3 TRUE COPY OF PETITION DATED 10.4.2019 IN I.A.1679/2019 EXHIBIT P4 TRUE COPY OF ORDER DATED 11/4/2019 IN I.A.1679/2019** ## **RESPONDENTS' EXHIBITS: NIL** **TRUE COPY** **PS TO JUDGE**