Dalbi Emmanuel v. Bastin Cherian and Alda Bastin

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN`** ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 OP(C) NO. 143 OF 2024 ``` ``` ORDER DATED 12.01.2024 IN IN IA 20 OF 2023 IN OS NO.300 OF 2023 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM ``` ## **`PETITIONER/PETITIONER/DEFENDANT:`** ``` DALBI EMMANUEL AGED 46 YEARS S/O EMMANUEL, 2ND FLOOR, EMMANUEL ARCADE, PROVIDENCE ROAD, ERNAKULAM, PIN – 682 018 BY ADVS. SHIJU VARGHESE SACHU THOMAS ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS:`** ``` 1BASTIN CHERIAN AGED 32 YEARS, S/O CHERIAN, RESIDING AT 1ST FLOOR ANS APARTMENT, AMULYA STREET, COCHIN, ERNAKULAM, PIN – 682 018 ``` - **`2 ALDA BASTIN AGED 29 YEARS, W/O BASTIN CHERIAN,RESIDING AT 1ST FLOOR ANS APARTMENT, AMULYA STREET, COCHIN, ERNAKULAM, PIN – 682 018`** ``` BY ADVS. Mathew John ABY J AUGUSTINE(K/000302/2018) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2024, ALONG WITH OP(C).2291/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(C).Nos. 2291 of 2023 and 143 of 2024 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 OP(C) NO. 2291 OF 2023 ``` ``` ORDER DATED 12.10.2023 IN IA 12 OF 2023 IN OS NO.300 OF 2023 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM ``` ## **`PETITIONER/RESPONDENT/DEFENDANT:`** ``` DALBI EMMANUEL AGED 46 YEARS S/O EMMANUEL, 2ND FLOOR, EMMANUEL ARCADE, PROVIDENCE ROAD, ERNAKULAM, PIN – 682 018 ``` ``` BY ADVS. SHIJU VARGHESE SACHU THOMAS ``` ## **`RESPONDENTS/PETITIONER/PLAINTIFF:`** ``` 1BASTIN CHERIAN AGED 32 YEARS, S/O CHERIAN, RESIDING AT 1ST FLOOR ANS APARTMENT, AMULYA STREET, COCHIN-18, PIN – 682 018 ``` ``` 2ALDA BASTIN AGED 29 YEARS, W/O BASTIN CHERIAN,RESIDING AT 1ST FLOOR ANS APARTMENT, AMULYA STREET, COCHIN-18, PIN – 682 018 ``` ``` BY ADVS. Mathew John ABY J AUGUSTINE(K/000302/2018) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2024, ALONG WITH OP(C).143/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(C).Nos. 2291 of 2023 and 143 of 2024 3 ## **`JUDGMENT`** ## **`Dated, this the 12[th] day of March 2024`** ``` The Original Petition first above referred is preferred challenging Ext.P8 order, which allowed an application for amendment of the plaint. The Original Petition second above referred is one filed challenging Ext.P10 order, which refused an application for rejection of the plaint under Order VII, Rule 11(a) of the Code of Civil Procedure. Both these Original Petitions are preferred at the instance of the defendant in the suit, O.S.No.300/2023, pending before the Additional Munsiff Court, Ernakulam. ``` ``` 2.Heard the learned counsel appearing for the respective parties. ``` ``` 3.In sofar as O.P.(C).No.2291/2023 is concerned, the grievance of the petitioner is that the ``` O.P.(C).Nos. 2291 of 2023 and 143 of 2024 4 ``` amendment will alter the very nature and character of the suit. The above submission is made in the backdrop of the following facts and circumstances: ``` ``` The suit was one filed for an injunction restraining the defendant(petitioner herein) from trespassing into the common area described as plaint B Schedule property and from obstructing the plaintiffs from enjoying plaint B Schedule Property etc. The plaintiffs were claiming under an agreement for sale, wherefore, the suit was resisted on the premise that they have locus, as on the date of filing the suit, since they are strangers. The suit ought to have been filed by the real owner, was the contention raised. An application for rejection of the plaint for want of cause of action was also filed. Within seven days from the date of institution of the suit, the plaintiffs purchased the scheduled property as per the agreement for sale and sought for the subject amendment, so as to incorporate certain pleadings based on the ``` O.P.(C).Nos. 2291 of 2023 and 143 of 2024 5 ``` subsequent purchase, without there being any corresponding change to the relief sought for in the plaint originally. The amendment was allowed vide Ext.P8 order. According to the petitioner/defendant, the amendment changes the very nature and character of the suit. ``` ``` 4.This court cannot endorse the submissions made by the learned counsel for the petitioner. It is true that the suit was filed when the plaintiffs were only prospective purchasers, under an agreement for sale, of the scheduled property. The building is a three storied one, of which the ground floor as well as the first floor were agreed to be conveyed to the respondents/plaintiffs. The defendant in suit (petitioner herein) was the owner of the second floor of the property. It was contended that the plaintiffs cannot maintain the suit only on the strength of an agreement for sale. Within seven days from the date of filing the suit, the plaintiffs ``` O.P.(C).Nos. 2291 of 2023 and 143 of 2024 6 ``` purchased the property as per a sale deed executed by the real owner. It will be too far-fetched to construe that allowing such an amendment to incorporate the subsequent event will alter the nature and character of the suit. It is true that at the time of filing the suit, the plaintiffs/respondents had only the prospects of becoming the owner of the property on the strength of an agreement for sale. And, after the execution of the sale, they became the complete owners. It cannot be said that the defendant(the petitioner herein) had a vested right to get the suit dismissed based on the so called infirmity of the plaintiffs as on the date of filing the suit. It is settled that subsequent events can also be reckoned for the purpose of amendment of the suit, as also, for deciding the maintainability of the suit in the context of Order VII, Rule 11. In the circumstances, the challenge posed in O.P.No.2291/2023 will stand dismissed. ``` O.P.(C).Nos. 2291 of 2023 and 143 of 2024 7 ``` 5.ComingtoO.P.No.143/2024,the petitioner/defendant is relying upon on the judgment of the Honourable Supreme Court, produced at Ext.P7 inShakeel Ahammad v. Sayed Aklakh Hussain in Civil Appeal No.1598/2023, wherein, it was held in paragraph no.10 that the a suit for injunction simplicitor by a person, who is the holder of an agreement for sale of the property, is not maintainable, in asmuch as he failed to sue for specific performance. According to the learned counsel, the suit, as framed originally, is liable to be rejected as not maintainable, going by the said judgment of an Honourable Supreme Court. Here again, the question will depend upon the subsequent event with respect to the sale of the property in favour of the plaintiffs, whereunder, their rights got ripened to that of a full owner by virtue of purchase of the property. In asmuch as the amendment is allowed and the challenge against the same is dismissed, the suit, as it stands now, is not ``` O.P.(C).Nos. 2291 of 2023 and 143 of 2024 **==> picture [7 x 10] intentionally omitted <==** ``` suffering from any infirmity, so as to face rejection under Order VII, Rule 11. It cannot be said that the infirmity in respect of the suit at the time of its institution cannot be cured subsequently, if the same is a curable defect/ infirmity especially, when such infirmity will be reduced to a vanishing point based on a subsequent event, which stems from a fact which is very much pleaded in the suit. In the instant case, the plaintiffs have very well pleaded that they are the holders of an agreement for sale in respect of the subject property and injunction sought for in such capacity. That right of the plaintiffs has ripened to that of an absolute owner pursuant to sale of the scheduled property, within seven days from the date of institution of the suit. ``` ``` 6.This court also finds that the judgment of the Honourable Supreme Court is not liable to be applied in the instant facts, in as much as the present suit ``` O.P.(C).Nos. 2291 of 2023 and 143 of 2024 9 ``` is filed as against a stranger – and not against the owner - seeking injunction. If and only if it is sought against the owner, the decision in Shakeel Ahmmad(supra) will apply, wherein, the vice of not seeking a relief for specific performance and limiting the relief to one for injunction simplicitor will come into play. In the instant case, the relief for injunction as against 3rd person, who is the owner of the 2[nd] floor, which is the one adjoining to the floors over which the plaintiffs is seeking title and right. For that reason also, the decision in Shakeel Ahmmad (supra) cannot apply, so as to entail rejection of the plaint under Order VII, Rule 11. In the circumstances, the challenges posed in this Original Petition fail and the same will stand dismissed. ``` ``` 6.Learned counsel for the respondents would submit that an application was preferred by the plaintiffs in the suit as I.A.9/2023 seeking direction to the ``` O.P.(C).Nos. 2291 of 2023 and 143 of 2024 **==> picture [13 x 10] intentionally omitted <==** ``` defendant in the suit to restore the basic amenities which is still pending. This court notice that the said application was filed as early as on 31/3/2023. In the circumstances, there will be a direction to 2nd Additional Munsiff Court, Ernakulam, to hear and dispose of I.A.No.9/2023 expeditiously, at any rate within a period of one month from the date of receipt of a copy of this judgment. ``` ``` This Original Petition is disposed of, as above. ``` ``` Sd/- ``` ## **`C.JAYACHANDRAN, JUDGE`** ``` SSG ``` O.P.(C).Nos. 2291 of 2023 and 143 of 2024 11 ## **`APPENDIX OF OP(C) 143/2024`** ``` PETITIONER’S EXHIBITS Exhibit P1TRUE COPY OF THE PLAINT IN OS NO. 300/2023 OF THE HON'BLE IIND ADDITIONAL MUNSIFF'SCOURT,ERNAKULAMDATED 17.03.2023 Exhibit P2TRUE COPY OF IA NO.2/2023 IN OS NO. 300/2023 DATED 17.03.2023 Exhibit P3TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN IA NO.2/2023 DATED 20.3.2023 Exhibit P4TRUE COPY OF THE ORDER IN IA NO.2/2023 IN OS NO.300/2023 OF THE HON'BLE IIND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM DATED 28.03.2023 Exhibit P5TRUE COPY OF THE AGREEMENT FOR SALE DATED 4.11.2022 Exhibit P6TRUE COPY OF THE LETTER DATED 24.1.2023 Exhibit P7TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL NO.1598/2023 DATED 01.11.2023 Exhibit P8TRUE COPY OF IA NO.20/2023 IN OS NO. 300/2023 DATED 7.12.2023 Exhibit P9TRUE COPY OF THE OBJECTIONS FILED TO IA NO.20/2023 DATED 15.12.2023 Exhibit P10TRUE COPY OF THE ORDER IN IA NO.20/203 OF THE HON'BLE IIND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM DATED 12.01.2024 ``` O.P.(C).Nos. 2291 of 2023 and 143 of 2024 12 ## **`APPENDIX OF OP(C) 2291/2023`** ``` PETITIONER’S EXHIBITS Exhibit P1TRUE COPY OF THE PLAINT IN OS NO. 300/2023 OF THE HON'BLE IIND ADDITIONAL MUNSIFF'SCOURT,ERNAKULAMDATED 17.03.2023 ``` ``` Exhibit P2TRUE COPY OF IA NO. 2/2023 IN OS NO. 300/2023 DATED 17.03.2023 ``` ``` Exhibit P3TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN IA NO.2/2023 IN OS NO.300/2023, DATED 20.3.2023 ``` ``` Exhibit P4TRUE COPY OF THE ORDER IN IA NO.2/2023 IN OS NO.300/2023 OF THE HON'BLE IIND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM DATED 28.03.2023 ``` ``` Exhibit P5TRUE COPY OF THE AGREEMENT FOR SALE DATED 4.11.2022 Exhibit P6TRUE COPY OF THE IA NO. 12/2023 IN OS NO.300/2023 FILED BEFORE THE HON'BLE IIND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM DATED 10.04.2023 Exhibit P7TRUE COPY OF THE OBJECTIONS FILED TO THE IA NO.12/2023 DATED 5.10.2023 Exhibit P8TRUE COPY OF THE ORDER IN IA NO.12/2023 IN OS NO.300/2023 OF THE HON'BLE IIND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM DATED 12.10.2023 ```