High Court of KeralaSingle Judge2023-03-09Original petition allowed; Ext P4 set aside; Ex...

Dasan v. Rajan and others

Case / Petition Number:OP(C) No.1330 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias, J.
Judgment Date: 2023-03-09
Court Decision / Holding: Ext P4 order rejecting Ext P3 is set aside. Ext P3 is allowed. The petitioner shall carry out the amendment to the plaint within the prescribed statutory time. The court below shall permit the respondents to file their additional written statement to the amended plaint within one month from the date the amendment is carried out. As the suit is of the year 2012, OS 561/2012 shall be considered and disposed of in accordance with law and as expeditiously as possible.
Final Disposition: Original petition allowed; Ext P4 set aside; Ext P3 allowed; amendment to be carried out; additional written statement to be filed within one month; OS 561/2012 to be disposed of as expeditiously as possible.

Parties to the Case

Appellants / Petitioners

Dasan
Addl. Sulochana
Addl. Sujana C.

Respondents

Rajan
Padmavathy
Sudhakaran (deceased)
Sobhana (deceased)
Prasanna
Yesoda (deceased)
Mydhiili
Rajika Krishnan
Arunraj
Abhinraj
V.M. Appukuttan
Aswini M.P
Prema
Prabeesh
Prabitha

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. Santharam
• Smt. Rekha Aravind

Counsels for Respondents

• Smt. M. Manju
• Sri R. Sudhish

Case Synopsis & Summary

This High Court of Kerala, in OP(C) 1330 of 2014, examines whether an amendment to the plaint can be allowed to challenge the alleged fabrication of a receipt in a partition suit (OS 561/2012). The plaintiff Dasan filed the suit seeking partition; the defence by defendants 6 and 7 resisted. The plaintiff sought to amend the plaint via IA 993/2014 to allege that a receipt dated 28 January 1972, executed by Ammalu alias Meenakshi, is fabricated. The trial court (Principal Munsiff II, Kozhikode) rejected the amendment as it would contravene an averment in the written statement, prompting the petitioners to challenge Ext P4. The High Court held that the Supreme Court in Life Insurance Corp. v. Sanjeev Builders has laid down guidelines that amendments should be liberally considered unless time barred, or barred by Order 2 Rule 2 CPC, or would alter the nature of the suit. The court found the proposed amendment would not change the suit’s nature or prejudice the defendants; it could be safeguarded by permitting defendants to file an additional written statement. Accordingly, Ext P4 is set aside, Ext P3 is allowed, and the plaintiff must complete the amendment within statutory time; the respondents may file an additional written statement within one month; OS 561/2012 shall be disposed of as expeditiously as possible.

Provisions of Law Cited

Code of Civil Procedure, 1908 – Order 2 Rule 2Constitution of India – Article 227

Legal Doctrines & Maxims

Liberal approach to amendments of pleadings ( Life Insurance Corporation of India v. Sanjeev Builders (P) Ltd )
Amendments should not alter the nature of the suit or prejudice the defense

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contend that the amendment to incorporate a plea that the receipt executed by Ammalu alias Meenakshi on 28.1.1972 is fabricated would not alter the essential nature of the partition suit. Relying on the liberal amendment principle laid down in Life Insurance Corporation of India v. Sanjeev Builders (P) Ltd, they argue that the amendment is timely, does not introduce new relief, and merely strengthens the case with a factual challenge to the authenticity of a document. The proposed amendment would not prejudice the respondents; it would only require filing of an additional written statement to address the amended plaint.

Contentions of Respondents

The respondents contend that permitting the amendment would amount to adding a new facet to the case, potentially altering the nature of the suit and complicating defense. They argue that allowing the amendment would necessitate a fresh written statement and could prejudice the defendants by introducing a new controversy at a late stage. The impugned order denying Ext P3 is thus argued to be appropriate since amendments should not be allowed if they change the character of the suit or undermine procedural safeguards.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Life Insurance Corporation of India v. Sanjeev Builders (P) Ltd	2022 SCC Online SC 1128	Positive	The Supreme Court laid down liberal guidelines for amendments to pleadings, which the Kerala High Court applied to permit the amendment in Ext P3.

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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 C.S.DIAS ``` ``` THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 ``` ## **`OP(C) NO. 1330 OF 2014`** **`AGAINST THE ORDER/JUDGMENT`** in IA No.993/2014 in **`OS 561/2012 OF PRINCIPAL`** ## **`MUNSIFF COURT ,KOZHIKODE-II`** ## **`PETITIONER/S:`** - `1 DASAN,AGED 64 YEARS, S/O. VEKILATTU, NADAPURAKKAL AMMALU @ MEENAKSHI, CHERATTODATH, AZHINJILAM AMSOM AND DESOM, ERNAD TALUK, FEROKE COLLEGE POST, MALAPPURAM.(DIED)` - `2 ADDL. SULOCHANA ,AGED 71 YEARS,W/O. LATE. DASAN, , RESIDING AT CHERIKKANDY "PUNARTHAM" ELATHUR VILLAGE, ELATHUR P.O, KOZHIKODE DIST. PIN 673303` - `3 ADDL. SUJANA C.,AGED 37 YEARS D/O. DASAN, AGED 37 YEARS, RESIDING AT CHERIKKANDY "PUNARTHAM", ELATHUR VILLAGE, ELATHUR P.O, KOZHIKODE DIST. PIN 673303 (ADDL P2 AND P3 ARE IMPLEADED AS LRS OF P1 VIDE ORDER DATED 1.6.2022 IN IA 1/202.) BY ADVS. SRI.SANTHARAM.P SMT.REKHA ARAVIND` ## **`RESPONDENT/S:`** - `1 RAJAN,AGED 59 YEARS, S/O. VEKILATTU, NADAPURAKKAL AMMALU @ MEENAKSHI, CHERATTODATH, AZHINJILAM AMSOM AND DESOM, ERNAD TALUK, FEROKE COLLEGE POST, MALAPPURAM.` - `2 PADMAVATHY,AGED 62 YEARS, D/O. VEKILATTU, NADAPURAKKAL AMMALU @ MEENAKSHI, CHERATTODATH, AZHINJILAM AMSOM AND DESOM, ERNAD TALUK, FEROKE COLLEGE POST, MALAPPURAM.` - `3 SUDHAKARAN (DIED),AGED 56 YEARS, S/O. VEKILATTU, NADAPURAKKAL AMMALU @ MEENAKSHI, CHERATTODATH, AZHINJILAM AMSOM AND DESOM, ERNAD TALUK, FEROKE COLLEGE POST, MALAPPURAM.` - `4 SOBHANA (DIED),AGED 52 YEARS, D/O. VEKILATTU, NADAPURAKKAL AMMALU @ MEENAKSHI, CHERATTODATH, AZHINJILAM AMSOM AND DESOM, ERNAD TALUK, FEROKE COLLEGE POST, MALAPPURAM.` - `5 PRASANNA,AGED 50 YEARS, D/O. VEKILATTU, NADAPURAKKAL AMMALU @ MEENAKSHI, CHERATTODATH, AZHINJILAM AMSOM AND DESOM, ERNAD TALUK, FEROKE COLLEGE POST, MALAPPURAM.` - `6 YESODA (DIED),D/O. KUTTAI, AGED 72 YEARS, NADERIKUNNUMMAL HOUSE,KODAL AMSOM DESOM, KOZHIKODE TALUK, PANTHEERANKAVE P.O., KOZHIKODE DISTRICT.` - `7 MYDHIILI,AGED 47 YEARS, D/O. YESODA, NADERIKUNNUMMAL HOUSE,KODAL AMSOM DESOM, KOZHIKODE TALUK, PANTHEERANKAVE P.O., KOZHIKODE DISTRICT` - `8 RAJIKA KRISHNAN,AGED 50 YEARS, W/O LATE SUDHAKARAN, CHIRATTODATH HOUSE, AZHINJILAM AMSOM AND DESOM, ERNAD TALUK, PIN-673632, FEROKE COLLEGE POST, MALAPPURAM` 2 ## OP(C) No.1330 of 2014 ``` DISTRICT. ``` - `9 ARUNRAJ.AGED 23 YEARS, S/O LATE SUDHAKARAN, CHIRATTODATH HOUSE, AZHINJILAM AMSOM AND DESOM, ERNAD TALUK, PIN673632, FEROKE COLLEGE POST, MALAPPURAM DISTRICT.` - `10 ABHINRAJ,AGED 20 YEARS, S/O LATE SUDHAKARAN, CHIRATTODATH HOUSE, AZHINJILAM AMSOM AND DESOM, ERNAD TALUK, PIN673632, FEROKE COLLEGE POST, MALAPPURAM DISTRICT.` - `11 V.M. APPUKUTTAN,61 YEARS, S/O RAMAKURUPPU, VARIKKODE MEETHAL-KACHERI, (P.O) THALAKKULATHUR, PIN-673317, THALAKKULATHUR AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.` - `12 ASWINI. M.P,AGED 30 YEARS, D/O APPUKUTTAN, MANDAM, PUTHUKOTTU, CHINGAPURAM, PIN-673529, NANDHI BAZAR, KOYILANDI TALUK, KOZHIKODE DISTRICT. (ADDITIONAL RESPONDENTS 8 TO 12 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 3RD AND 4TH RESPONDENTS, VIDE ORDER DATED 2003-2019 IN IA NO.1/2019)` - `13 PREMA,AGED 50 YEARS, W/O LATE PAVITHRAN, NADERIKUNNUMMAL HOUSE, KODAL AMSOM DESOM, KOZHIKODE TALUK, PANTHEERANKAVE (P.O), KOZHIKODE DISTRICT, PIN-673529` - `14 PRABEESH.,AGED 30 YEARS, S/O LATE PAVITHRAN, NADERIKUNNUMMAL HOUSE, KODAL AMSOM DESOM, KOZHIKODE TALUK, PANTHEERANKAVE (P.O), KOZHIKODE DISTRICT, PIN-673529` - `15 PRABITHA,AGED 27 YEARS, D/O LATE PAVITHRAN, NADERIKUNNUMMAL HOUSE, KODAL AMSOM DESOM, KOZHIKODE TALUK, PANTHEERANKAVE (P.O), KOZHIKODE DISTRICT, PIN-673529 (ADDITIONAL RESPONDENTS 13 TO 15 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 6TH RESPONDENT, VIDE ORDER DATED 19-08-2019 IN IA NO.2/2019) BY ADVS. SMT.M.MANJU SRI.R.SUDHISH` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 OP(C) No.1330 of 2014 ## **C.S DIAS,J.** **---------------------------** ## **OP(C) No.1330 of 2014** **----------------------------Dated this the 9[th] day of March, 2023.** ## **JUDGMENT** The original petition is filed challenging Ext P4 order passed in IA No.993/2014 in OS No.561/2012 by the Court of the Principal Munsiff-II, Kozhikode. The petitioner is the plaintiff and the respondents are the defendants and the legal representatives of the deceased respondents. 2. The brief facts leading to Ext P4 order are: 2. (i). The petitioner instituted Ext P1 plaint for partition. - 2.(ii). The suit was resisted by the respondents 6 and 7 - through Ext P2 written statement. 4 OP(C) No.1330 of 2014 2. (iii). On going through the contentions raised by the respondents 6 and 7 in Ext P2 written statement, the petitioner filed IA No.993/2014 (Ext P3) seeking leave to amend the plaint. 2.(iv). The court below, by the impugned Ext P4 order, rejected Ext P3 application on the ground that the amendment cannot be permitted to controvert an averment in the written statement. 2.(v). Ext P4 order is manifestly wrong and unsustainable in law. Hence, the original petition. 3. Heard; Sri.P.Santharam, the learned Counsel appearing for the petitioner and Smt.M Manju, the learned Counsel appearing for the respondents. 4. The short point is, whether there is any illegality in Ext P4 order. 5 OP(C) No.1330 of 2014 5. The suit is filed for partition, which is resisted by the respondents 6 and 7 through Ext P2 written statement. 6. After reading Ext P2 written statement, the petitioner felt it necessary to amend the plaint, by incorporating an averment that the receipt executed by the person named, Ammalu @ Meenakshi, on 28.1.1972, was a fabricated document. Accordingly, Ext P3 application was filed, but the amendment was disallowed by the impugned Ext P4 order. 9. In **Life Insurance Corporation of India vs. Sanjeev Builders (P) Ltd** [2022 SCC Online SC 1128], the Hon’ble Supreme Court has laid down elaborate guidelines for the Courts while considering applications to amend the pleadings. It is emphathetically held that applications seeking leave to amend the pleadings have to be liberally considered, unless the reliefs sought to be incorporated are 6 OP(C) No.1330 of 2014 time barred or hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure, or the amendment would change the nature of the suit. 10. The relief that is sought to be incorporated by way of Ext P3 application is that the alleged receipt executed by a lady named, Ammalu @ Meenakshi, is fabricated. 11. The proposed amendment would in no manner change the nature of the plaint. Moreover, no prejudice is likely to be caused to the respondents, whose interest can be safeguarded, by permitting them to file an additional written statement to the amended plaint. Hence, I hold that the court below has exceeded its powers of authority by disallowing Ext P3 application, warranting interference by this Court under Article 227 of the Constitution of India. ## Resultantly, I allow the original petition as follows: (i) Ext P4 order is set aside. 7 OP(C) No.1330 of 2014 (ii) Ext P3 application is allowed. (iii) The petitioner shall carry out the amendment to the plaint within the prescribed statutory time period. (iv) The court below shall permit the respondents to file their additional written statement to the amended plaint within one month from the date the amendment is carried out. (v) As the suit is of the year 2012, the Court of the Principal Munsiff-II, Kozhikode, shall consider and dispose of OS No.561/2012, in accordance with law and as expeditiously as possible. sks/9.3.2023 **C.S.DIAS, JUDGE** 8 OP(C) No.1330 of 2014 ## **`APPENDIX OF OP(C) 1330/2014`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT-P1-TRUE COPY OF THE PLAINT IN O.S 561/2012 ON THE FILES OF THE MUNSIFF'S COURT II, KOZHIKODE. EXHIBIT-P2-TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 6TH AND 7TH RESPONDDNTS/6TH AND 7TH DEFENDANTS IN O.S 561/2012 ON THE FILES OF THE MUNSIFF COURT II, KOZHIKODE. EXHIBIT-P3-TRUE COPY OF THE I.A 993/2014 IN O.S 561/2012. ``` ``` EXHIBIT-P4-TRUE COPY OF THE ORDER IN I.A 993/2014 IN O.S 561/2012. ```