Damodara Panickar and Retnamma v Lekshmikutty Amma @ Lekshmi Amma, Mohanan Pillai @ Mohanapanickar, Thankamma, Rugmini Amma, Roopa and Anoop

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 21[ST] DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945** ## **OP(C) NO. 2153 OF 2023** **AGAINST THE ORDER/JUDGMENT OS 420/2015 OF MUNSIFF COURT,CHENGANNUR** ## **PETITIONERS/PETITIONERS/DEFENDANTS 1 & 2:** |1|DAMODARA PANCIKAR| |---|---| ||AGED 88 YEARS| ||ARAMPATHU VEEDU, KUTTAMPEROOR MURI, MANNAR,| ||PIN - 689623| |2|RETNAMMA| ||AGED 86 YEARS| ||ARAMPATHU VEEDU, KUTTAMPEROOR MURI, MANNAR,| ||PIN - 689623| ||BY ADVS.| ||RINNY STEPHEN CHAMAPARAMPIL| ||ASHA ELIZABETH MATHEW| |**RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 4 TO 7:**|| |1|LEKSHMIKUTTY AMMA @ LEKSHMI AMMA,| ||PUTHIRETHU VEEDU, KUTTEMPEROOR MURI, MANNAR, PIN -| ||689623| |2|MOHANAN PILLAI @MOHANAPANICKAR| ||KARTHIKA, KURATHIKKADU , MANNAR, PIN - 689622| |3|THANKAMMA| ||PUTHIRETHU VEEDU, KUTTEMPEROOR MURI, MANNAR, PIN -| ||689623| |4|RUGMINI AMMA| ||GENERAL STORES (USHALAYAM), KIZHAKKEVAZHY MURI,| ||THRIPPERUMTHURA, PIN - 690105| |5|ROOPA| ||D/O. PARAMESWARA PANICKAR, GENERAL STORES (USHALAYAM),| ||KIZHAKKEVAZHY MURI, THRIPPERUMTHURA, PIN - 690105| |6|ANOOP| ||/O. PARAMESWARA PANICKAR, GENERAL STORES (USHALAYAM),| ||KIZHAKKEVAZHY MURI, THRIPPERUMTHURA, PIN - 690105| ||BY ADV K.RAJESH KANNAN| |THIS|OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.12.2023,| |THE COURT|ON THE SAME DAY DELIVERED THE FOLLOWING:| **O.P.(C).No. 2153 of 2023** ..2.. ## **J U D G M E N T** ## _**Dated this the 21[st] day of December, 2023**_ **The petitioners herein are defendants 1 and 2 in O.S.No.420/2015 of the Munsiff Court, Chengannur. They are aggrieved by Ext.P7 order, which refused Ext.P5 application for amendment of the written statement.** **2. Heard the learned counsel for the petitioners and the respondents.** **3. Learned counsel for the petitioners submitted that, despite a specific title being claimed in the plaint on the strength of a sale deed of the year 1971 (Sale Deed no. 1922/1971), the same was not produced along with the plaint, contrary to the mandate of Order VII, Rule 14. Nor was any explanation offered by the plaintiffs in not producing the said title deed along with plaint. The petitioners/defendats filed Ext.P2 written** **O.P.(C).No. 2153 of 2023** ..3.. **statement without having the advantage of perusing the title deed claimed by the plaintiffs, wherein, they have denied the sanctity of the said title deed, contending that, such a document, as claimed by the plaintiffs, has never come into force and that the defendants have not received any consideration for the same. It was also contended that the document was got registered in favour of the plaintiffs only as a security for a family arrangement and it was not intended to be acted upon as a sale deed. Learned counsel would explain that, the defendants were constrained to take such an imprecise contention, only because of the disadvantage of not perusing the sale deed relied upon by the plaintiffs, since it was not produced by the plaintiffs along with the plaint, or subsequently.** **4. Learned counsel then submitted that, the plaint was amended twice. Initially, there was an amendment to the schedule. Thereafter, substantial** **O.P.(C).No. 2153 of 2023** ..4.. **amendments were incorporated to the pleadings as well, as could be seen from Ext.P3 amended plaint. On that occasion also, the plaintiffs did not choose to produce the title deed relied upon. To the amended Ext.P3 plaint, the defendants/petitioners filed Ext.P4 additional written statement. The matter was thereafter listed for trial and the 2[nd] plaintiff was examined as PW 1, through whom, a certified copy of the title deed was marked. Thereafter, the 1[st] plaintiff was examined as PW 2, at which point of time, the original title deed of the plaintiff was produced for the first time and the same was marked through PW 2. Learned counsel would point out that, such document was produced without obtaining any leave from the court, as enjoined by Order VII, Rule 14. Thereafter, the plaintiffs' evidence was closed and before commencement of the defendants evidence, the defendants filed Ext.P5 I.A., seeking amendment to the written statement, to incorporate an additional pleading to the** **O.P.(C).No. 2153 of 2023** ..5.. **effect that signature contained in the title deed is not that of the 1[st] defendant. Ext.P6 is the objection preferred by the plaintiffs to the said interlocutory application. Ext.P5 application for amendment was dismissed vide the impugned Ext.P7 order by the Court below, essentially on two grounds, that is to say, that the pleadings sought to be amended are inconsistent with the preexisting pleadings; and secondly, delay. In the afore referred facts and circumstances, Ext.P7 order is bad in law, warranting interference by this Court, is the final submission of the learned counsel.** **5. Learned counsel for the respondents/plaintiffs would submit that, two documents were executed on the same day consecutively, the 1[st] by one Gopinatha Panickar in favour of the 1[st] defendant, vide Sale deed no.1923/1971; followed by a sale deed bearing no.1922/1971 by the 1[st] defendant in favour of the plaintiffs. The learned counsel** **O.P.(C).No. 2153 of 2023** ..6.. **would emphatically submit that, the execution of the document is categorically admitted by the 1[st] defendant in the written statement, especially in paragraph no.14. All what the defendant contented was that the document was not intended to be acted upon and that the same was executed towards security for a family arrangement etc. The execution** _**per se**_ **was not denied, wherefore, the present pleading sought to be incorporated, seeking to deny the signature, is wholly inconsistent with the existing pleadings. Besides, as rightly found by the lower court, the present application for amendment is highly belated as well, especially in the context of the Proviso to Order VI, Rule 17.** **6. Having heard the learned counsel appearing on both sides, this Court is of the opinion that the instant original petition has to be allowed. This Court finds substantial merit in the petitioners' contention that the petitioners/defendants,** **O.P.(C).No. 2153 of 2023** ..7.. **despite exercise of due diligence, could not have sought for the subject amendment to the written statement before the commencement of trial, inasmuch as, the title deed under which the plaintiff sets up title was withheld from the notice of the defendants, until the plaintiff was examined as PW2. Order VII, Rule 14 mandates the suit document to be produced along with the plaint. Order VII, Rule 14(3) speaks of an embargo in respect of production of such a document at a subsequent stage of the suit, without the leave of the Court. It is also relevant to note that, the title deed relied upon by the plaintiff is a document of the year 1971, though executed by the 1[st] defendant himself in favour of the plaintiffs. At the time of institution of the suit itself, the 1[st] defendant was aged 80 years. Inconvenienced with want of an opportunity to peruse the title deed, contentions were taken in the written statement to the effect that, the document was executed as a security for a family arrangement,** **O.P.(C).No. 2153 of 2023** **==> picture [37 x 9] intentionally omitted <==** **that it was not a sale deed as claimed for by the plaintiffs, that it was not intended to be acted upon and that the said document is a sham one. Only upon seeing the title deed during the course of examination of PW2, the defendant got the 1[st] opportunity to verify the signature therein, which according to the defendants is not that of the 1[st] defendant. In such circumstances, this Court is of the opinion that the delay caused is not attributable to the defendants.** **7. Another aspect which was found against the petitioners/defendants herein is that, if the plea sought to be amended is permitted, the same would be inconsistent with the existing pleadings. On this point, petitioners' counsel relied upon a judgment of the Hon’ble Supreme Court in Baldev Singh and others v. Manohar Singh and another [2006 (6) SCC 498], wherein it was observed by the Hon’ble Supreme Court, in paragraph no.16, that inconsistent pleas can be raised by the defendants** **O.P.(C).No. 2153 of 2023** ..9.. **in the written statement, although, the same may not be permissible in the case of plaint. Another decision of the Hon’ble Supreme Court relied upon by the petitioners is Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel [2021 (6) KLT 57], wherein the Hon’ble Supreme Court held, in paragraph no.7, that an amendment to incorporate certain facts, which came to the knowledge of the party seeking amendment, subsequent to the commencement of the trial, may be allowed, if the same is required for determining the real question of controversy between the parties. Both the decisions are on all fours to the fact situation obtaining in this case.** **8. For the afore-referred reasons, both the grounds of delay and inconsistent plea, which were found against the petitioners in dismissing the amendment sought for, cannot hold good in law. In the circumstances, the impugned Ext.P7 order is set aside. Ext.P5 amendment application is** **O.P.(C).No. 2153 of 2023** ..10.. **allowed. The learned Munsiff will ensure that the amendments are carried out and shall proceed with the matter, in accordance with law.** **This Original Petition is allowed as indicated above.** Sd/- **C. JAYACHANDRAN JUDGE** ## **TR** **O.P.(C).No. 2153 of 2023** ..11.. ## **APPENDIX OF OP(C) 2153/2023** ## PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN O.S.NO.420/2015 OF THE MUNSIFF'S COURT, CHENGANNUR - Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S. NO. 420/2015 OF THE MUNSIFF'S COURT CHENGANNUR - Exhibit P3 A TRUE COPY OF THE AMENDED PLAINT IN O.S.NO. 420/2015 OF THE MUNSIFF'S COURT CHENGANNUR - Exhibit P4 A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S.NO.420/2015 OF THE MUNSIFF'S COURT CHENGANNUR Exhibit P5 A TRUE COPY OF I.A. NO. 13/2023 IN O.S.NO. 420/2015 OF THE MUNSIFF'S COURT, CHENGANNUR Exhibit P6 A TRUE COPY OF THE OBJECTION FILED BY THE PLAINTIFFS TO I.A. NO. 13/2023 IN O.S.NO. 420/2015 OF THE MUNSIFF'S COURT, CHENGANNUR Exhibit P7 A TRUE COPY OF THE ORDER DATED 27/09/2023 OF THE MUNSIFF'S COURT, CHENGANNUR IN I.A. NO. 13/2023 OF O.S.NO. 420/2015