Felix Moraes v. Moraes Omanan alias Ephérim Moraes and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 25[TH] DAY OF AUGUST 2021 / 3RD BHADRA, 1943 OP(C) NO. 538 OF 2014** **OS 641/2006 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM** ## **PETITIONER/S:** FELIX MORAES AGED 60 YEARS S/O.J.C.MIRAES,RESIDING AT MANGALA BHAVAN,MENAMKULAM,KAZHAKUTTOM,THIRUVANANTHAPURAM. BY ADVS. SRI.R.S.KALKURA SMT.R.BINDU SRI.HARISH GOPINATH SRI.JOHNSON JOSE PANJIKKARAN SRI.M.S.KALESH SRI.K.KURIAN KOSHY SMT.M.K.LEELAKUMARI SMT.A.V.PRIYA SRI.SANIL KUNJACHAN ## **RESPONDENT/S:** 1 MORAES OMANAN @ EPHERIM MORAES (DIED) S/O.J.C.MORAES,NOW RESIDING AT KAPPIVLA VEEDU,KULASEKHARAM,KODUNGANOOR.P.O,THIRUVANANTHAP URAM-695013. 2 SUDHAKARAN NAIR.B S/O.BHASKARAN NAIR,RESIDING AT CHITTADETHU MAVINKAL HOUSE,NARANGANAM.P.O,KOZHENCHERRY TALUK,PATHANAMTHITTA TALUK,PIN-689642. 3 VIJAYAKUMAR S/O.VASUDEVAN PILLAI,RESIDING AT AYILAM,THEKKEVILA MURI,KANIYAPURAM.P.O,PALLIPPURAM VILLAGE,PIN695301. 4 MANU HUSSAIN S/O.S.S.HUSSAIN,T.C.11/384,(2), DEVASWAM BOARD JN.,KOWDIAR.P.O,THIRUVANANTHAPURAM-695003. 5 VIJAYAN **O.P.(C) No.538 of 2014** 2 S/O.KARUNAKARAN,PWD CONTRACTOR,KAMUKARA MURI,KAZHAKUTTOM.P.O, MENAMKULAM VILLAGE,PIN-689691. 6 JAYAKUMAR S/O.GOPINATHAN NAIR, CONTRACTOR,RESIDING AT ADHIKARIVILAKATHU VEEDU,T.C.50/267,KALADY SOUTH, KARAMANA.P.O, MANACAUD VILLAGE, THIRUVANANTHAPURAM-695009. 7 MARY PEREIRA D/O.THERSIAL PERIERA,RESIDING AT 23,JALANKART TIGA, JALAN MAKTAB, 5400, KAULALUMPUR, MALAYSIA. 8 SYBIL MORAES (DIED) AGED 79 YEARS D/O.LATE VINCENT PEREIRA, RESIDING AT MANGALA BHAVAN, MENAMKULAM,KAZHAKUTTOM, THIRUVANANTHAPURAM-695583. 9 FELCITA THOMAS D/O SYBIL MORAES, RESIDING AT C-9, KANAKA NAGAR, KOWDIAR P.O., THIRUVANANTHAPURAM-695003 10 TIBUTIOUS VINCENT S/O J.C. MORAES, RESIDING AT MANGALA BHAVAN, MENAMKULAM, KAZHAKUTTOM, THIRUVANANTHAPURAM - 695583 11 CLARA CATHERINE D/O SYBIL MORAES, RESIDING AT A-29, KANAKA NAGAR, KOWDIAR P.O., THIRUVANANTHAPURAM-695003 12 THOMAS MORAES S/O J.C. MORAES, RESIDING AT MANGALA BHAVAN, MENAMKULAM, KAZHAKUTTOM, THIRUVANANTHAPURAM - 695583 13 DR. ARCADIUS XAVIER S/O J.C. MORAES, RESIDING AT 29/941, KOOTULI, KUTHIRAVATTOM P.O., KOZHIKODE - 633016 (THE PETITIONER IS RECORDED AS THE LEGAL HEIR OF THE DECEASED 8TH RESPONDENT AND THE OTHER LEGAL HEIRS OF THE DECEASED 8TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 9 TO 13 VIDE ORDER DATED 29/07/2019 IN IA NO.1204/2016) 14 JOSE KAMAL **O.P.(C) No.538 of 2014** 3 S/O MORAES OMANAN @ EPHERIM MORAES, NOW RESIDING AT 'KAILAS' K-110 KAKKODE LANE, BHAGAT SINGH ROAD, PETTA P.O., THIRUVANANTHAPURAM - 695024 15 ANNIE RITA D/O MORAES OMANAN @ EPHERIM MORAES, NOW RESIDING AT 'KAILAS' K-110 KAKKODE LANE, BHAGAT SINGH ROAD, PETTA P.O., THIRUVANANTHAPURAM - 695024 16 VINCENT BABY S/O MORAES OMANAN @ EPHERIM MORAES, NOW RESIDING AT 'KAILAS' K-110 KAKKODE LANE, BHAGAT SINGH ROAD, PETTA P.O., THIRUVANANTHAPURAM - 695024 17 TITUS BOBY S/O MORAES OMANAN @ EPHERIM MORAES, NOW RESIDING AT 'KAILAS' K-110 KAKKODE LANE, BHAGAT SINGH ROAD, PETTA P.O., THIRUVANANTHAPURAM - 695024 18 ANTONY BABU S/O MORAES OMANAN @ EPHERIM MORAES, NOW RESIDING AT 'KAILAS' K-110 KAKKODE LANE, BHAGAT SINGH ROAD, PETTA P.O., THIRUVANANTHAPURAM - 695024 (ADDITIONAL R14 TO R18 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 1ST RESPONDENT VIDE ORDER DATED 29/07/2019 IN IA NO.1205/2016.) BY ADVS. SRI.PRAVEEN VYASAN SRI.PRAVEEN VYASAN SMT.MARY BENJEMIN SRI.P.J.ANILKUMAR SRI.P.S.SREE PRASAD SMT.INDU SUSAN JACOB **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON 25.08.2021, THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C) No.538 of 2014** 4 ## **JUDGMENT** **Dated this the 25[th] day of August, 2021** **The petitioner is the second plaintiff in O.S.No.641 of 2006 on the files of the Principal Sub Judge, Thiruvananthapuram. The first plaintiff (now deceased), is the petitioner's mother and was arrayed as 8[th] respondent herein, as she could not join the petitioner in filing the original petition due to her old age and adverse health condition. The suit is filed seeking to declare the plaintiff's title and possession over plaint schedule property. The second prayer is to declare the certificate of purchase No.137 of 2001 issued in SM No.9/1998 of the Land Tribunal, Thiruvananthapuram, as vitiated by fraud and void** _**ab initio**_ **and the third prayer, for a permanent** **O.P.(C) No.538 of 2014** 5 **prohibitory injunction restraining the defendants, their men or anyone claiming through them, from trespassing into the plaint schedule property and obstructing the plaintiff’s peaceful possession and enjoyment of the property. The plaint scheduled property is an extent of 3 Acres and 57 cents of land with improvements, comprised in Block No.10, Sy.No.236/7-1 and 237/1 of Menamkulam Village in Thiruvananthapuram Taluk. Briefly stated, the allegations in the plaint are to the following effect;** **The plaint schedule property belongs to the petitioner and his mother absolutely. Their right, title, interest and possession over the property has been declared in O.S.No.336 of 1988 of the Munsiff’s Court, Thiruvananthpauram, filed by the sister of the first plaintiff. The plaintiffs have obtained patta for the property** **O.P.(C) No.538 of 2014** 6 **and are paying land tax. The first defendant/first respondent herein is the eldest son of the first plaintiff, who is having no manner of right over the plaint schedule property. The first defendant fraudulently obtained an order in his favour in SM No.9/1998 of the Land Tribunal, Thiruvananthapuram and on the strength of that order, obtained Land Assignment Certificate No.137/2001. On coming to know about the fraudulent acts of the first defendant, petitioners made enquiries and found that only Vincent Pereira, the father of the first plaintiff, who had died long back (26.09.1973), was made a party in SM No.9/1998. Therefore, the proceedings, the order and the land assignment certificate issued to the first defendant are vitiated by fraud. Hence, the suit.** **2. On coming to know about the suit, the first respondent filed O.S.No.817 of 2006 before** **O.P.(C) No.538 of 2014** 7 **the Munsiff’s Court, Thiruvananthapuram praying for a permanent prohibitory injunction restraining the petitioner's mother and her sister from creating documents with respect to the property. The suits are being tried jointly.** **3. In O.S.No. 641 of 2006, the first respondent filed his written statement on 30.01.2007. From the written statement, the plaintiffs came to know that the first respondent had assigned portions of the plaint schedule property to third persons. Hence, those persons were also impleaded as defendants. The subsequently impleaded defendants filed their written statements on various dates up to 13.06.2013. Thereafter, issues were framed by the court on 18.06.2013. After the suit was listed for trial, the first respondent sought permission to amend the written statement on 09.10.2013 and** 8 ## **O.P.(C) No.538 of 2014** **thereafter, produced certain documents on 10.12.2013. In his attempt to answer the contentions in the written statements, the** **petitioner filed Ext.P9 replication on 21.01.2014, along with Ext.P10 application for accepting the replication. By Ext.P12 order, the court below dismissed the application for accepting the replication. Hence, this original petition.** **4. Heard Sri.R.S.Kalkura, learned Counsel for the petitioner and Sri.Praveen Vyasan, learned Counsel for the respondents.** **5. Learned Counsel for the petitioner assailed the impugned order, contending that Order 8 Rule 9 provides for filing of subsequent pleadings which takes in replication of the plaintiff and rejoinder of the defendant. It is pointed out that the 6[th] defendant had filed written statement only on 13.06.2013 and thereafter, the first defendant** **O.P.(C) No.538 of 2014** 9 **had moved amendment application on 09.10.2013 and had produced additional documents on 10.12.2013, As such, there was no delay on the petitioner’s part, since the replication was filed on 21.01.2014. It is contended that rejection of the replication on the premise that the suit was listed for trial is illegal. The trial in a suit can be said to have commenced only when affidavit in lieu of chief examination is filed by the plaintiff/witness and not merely by the suit being listed for trial. In support of the contentions, reliance is placed on the decisions in** _**Kochukesavan Nair v. Gouri Amma [1967 KLT 257**_ **],** _**Sujir Keshav Nayak v. Sujir Ganesh Nayak [1991 (2) KLT 741], Sunil & Vasanth v. Tata Ceramics Ltd [1999 (1) KLT 61], Baby v. Sebastian [2007(3) KLT 885] and Sasidharan v. Sudarsan [2020 SCC OnLine Ker 4540]**_ **.** **O.P.(C) No.538 of 2014** 10 **6. In reply, learned Counsel for the respondent contended that Order 8 Rule 9 CPC do not confer any vested right to file replication and the attempt of the petitioner was to fill up the lacuna in the plaint through his replication. According to the learned Counsel, at best, the petitioner could have only amended the plaint, which remedy was not resorted to in view of the prohibition contained in the proviso to Order 6 Rule 17 CPC. The decision of the Apex Court in** _**P.A.Jayalakshmi v. H.Saradha and others [(2009) 14 SCC 525]**_ **and that of the Karnataka High Court in** _**Glen Fredric Picardo v. Rodney Picardo and others [AIR 2011 Kar.13]**_ **are relied on to garner support for the contention.** **7. From the contentions advanced, the question emerging for consideration is whether Order 8 Rule 9 provides for the filling of replication by the** **O.P.(C) No.538 of 2014** 11 **plaintiff and if yes, whether rejection of the petition seeking leave to file replication on the ground of delay is justified. Before answering the questions, it is necessary to have a careful analysis of Order 8 Rule 9 of CPC, extracted hereunder for easy reference:** _**“9. Subsequent pleadings:- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counterclaim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.”**_ **On plain reading, it is clear that the provision does not create an absolute bar against submission of subsequent pleadings. Subsequent pleadings can be filed as of right if set off or counterclaim is pleaded in the written statement and with leave of the court, if set off or counterclaim is not pleaded. Way back in the year** **O.P.(C) No.538 of 2014** 12 **1967 itself this Court in** _**Kochukesavan Nair**_ **(supra) has held that, far from pinning down the plaintiff to the plaint, and the defendant to the written statement, the Code of Civil Procedure contemplates further pleadings and it is lawful for the plaintiff to file a replication with leave of the court. A different note was struck in** _**Sujir Keshav Nayak**_ **(supra). Therein, a learned Single Judge held that subsequent pleadings cannot be filed as a matter of course and can be filed only in certain circumstances, that too with leave of the court. It was also observed that the court should apply its mind and ascertain whether leave should be granted. Later, in** _**Sunil & Vasanth**_ **(supra), another learned Single Judge noted that the decision in** _**Sujeer Keshav Nayak**_ **was reversed by the supreme Court, though on other points. It was also noted that the practice of filing** **O.P.(C) No.538 of 2014** 13 **replication exists in certain parts of the State and that replication is meant for denying or clarifying the facts stated in the written statement and no fresh cause of action or fresh case is brought up by filing replication. The position was further clarified in** _**Baby (supra).**_ **The contextually relevant paragraphs of the judgment are extracted hereunder;** _**“5. “Pleadings” have been defined in the Code under O. VI R.1 to mean “plaint or written statement”. O.VIII R. 9 deals with pleadings subsequent to plaint and written statement. “Subsequent pleadings” can be either by the plaintiff or by the defendant. The view of the learned Subordinate Judge that subsequent pleadings under O.VIII R.9 are contemplated from the side of the defendant only when he raises pleas of set off or counter-claim is clearly erroneous. What R.9 provides is only that no pleadings subsequent to the written statement of the defendant other than by way of defence to set off or counter-claim shall be presented except with the leave of the Court. It is thus clear that the reference to set off or counter-claim under R.9 of O.VIII is reference to subsequent pleadings raised by the plaintiff and not to subsequent pleadings raised by the defendant. As far as subsequent pleadings raised by the defendant are concerned and for any subsequent pleadings from the plaintiff other than those by way of defence to**_ **O.P.(C) No.538 of 2014** 14 _**the pleas of set off and counter-claim, what is necessary is that the leave of the Court shall be obtained. Additional pleadings raised by the defendants subsequent to the written statement originally filed by them under O.VIII R.1 of the Code are often referred to as additional written statements. Filing of additional written statement may be necessitated for the purpose of introducing new contentions or for clarifying or elaborating on the contentions already raised. That need not necessarily be for raising pleas of set off or counter-claim, since having regard to the rules of limitation applicable to pleas of set off and counterclaim, defendant may have to raise such pleas at the earliest opportunity itself.**_ _**6...**_ _**7. There is no denying the fact that the practice of filing of replications by plaintiffs by way of answering defendants’ pleas in their written statements and of filing of rejoinder by defendants by way of answer to the contentions raised by plaintiffs through their replications is in vogue in various parts of the State. In common law pleading also, the word “replication” is in usage and the same means reply made to the defendant’s plea or answer. Similarly, “rejoinder” is used in common law pleading to refer to the second pleading of the defendant, being his answer to the plaintiff's replication (see Black’s Law Dictionary). Interestingly, in language the words replication and rejoinder are almost synonymous. The ratio of Justice Marar’s decision in Sujir Keshav Nayak’s case (supra) also is only that replications cannot be filed as a matter of right or course and that leave of the Court will be absolutely necessary under O. VIII R.9. According to me, it will be sufficient if the Courts understand all pleadings subsequent to the original plaint and written statement filed in the suit, by**_ **O.P.(C) No.538 of 2014** 15 _**whatever name they are called, as “subsequent pleadings” governed by O.VIII R.9.”**_ **The conspectus of the above decisions is to the effect that the plaintiff is entitled to file replication with leave of the court. Before granting leave, Court should ascertain whether any fresh cause of action or fresh case is being put forth.** **8. In** _**Glen Fredric Picardo**_ **(supra), the High Court of Karnataka has held that the pleadings in a suit is complete with the filing of the plaint, written statement, or additional written statement to a set off or counterclaim and any addition or deletion to the said pleadings can be made only by way of amendment under Order 6 Rule 17 and not by way of file replication. Further, Order 8 Rule 9 does not provide for a reply by the plaintiff subsequent to the written statement, other than by** **O.P.(C) No.538 of 2014** 16 **way of a defence to a set off or a counterclaim, that too with leave of the court. I am unable to subscribe to the dictum in** _**Glen Fredric Picardo**_ **since, my understanding of Order 8 Rule 9 is that the pleadings, subsequent to the filing of a written statement raising a counterclaim or set off, can be submitted as of right and in other cases, with the leave of the court. Moreover, the dictum in** _**Glen Fredric Picardo**_ **is contrary to the decisions of this Court in** _**Kochukesavan Nair, Sunil & Vasanth and Baby.**_ **9. In** _**P.A.Jayalakshmi(supra)**_ **, the suit was one for partition and the appellant had filed her written statement contending that upon the death of the predecessor-in-interest of the parties, the properties had devolved upon each of the children equally. Later, the appellant sought leave to file additional written statement, raising a new** **O.P.(C) No.538 of 2014** 17 **contention that her predecessor-in-interest had executed a Will, which came to her knowledge after the written statement was filed. The trial court dismissed the petition seeking permission to file additional written statement and the challenge against that order was repelled by the High Court. In appeal, the Supreme Court considered the distinction between Order 8 Rule 9 and Order 6 Rule 17 CPC and held that if amendment is allowed, unless a contrary intention is expressed by the court, the pleadings will relate back to the date of filing of the original pleadings, whereas subsequent pleadings stand on a different footing. On facts, it was observed that leave to file additional pleadings could have been sought by the appellant with a view to obviate the bar created by reason of the proviso to Order 6 Rule 17. The Apex court also took note of the fact that the** **O.P.(C) No.538 of 2014** 18 **trial had actually commenced and no question with respect to the alleged Will was put to the plaintiff during cross-examination. The** **aforementioned reasons prompted the court to dismiss the appeal. In the case at hand, there is no finding in the impugned order that the petitioner is introducing a new case through the replication. A scrutiny of the replication shows that it contains only parawise denial and the plaintiff's reply to the contentions in the written statements filed by the defendants. Inasmuch as no new case or cause of action is being introduced through the replication, an amendment of the plaint under Order 6 Rule 17 is unwarranted.** **10. The ancillary question arising for consideration is whether the replication was filed belatedly. As noted earlier, the 6th defendant** **O.P.(C) No.538 of 2014** 19 **filed his written statement on 13.06.2013, the first defendant filed the application for amending the written statement on 09.10.2013 and submitted additional documents on 10.12.2013. Thereafter, petitioner filed his application seeking leave to submit replication on 21.01.2014. Going by the sequence of events, the petitioner cannot be attributed with laches or delay in filing the replication.** **11. The other contention is that the prohibition in the Proviso to Order 6 Rule 17, against filing of amendment application after commencement of trial, is applicable to the filing of subsequent pleadings also. There is no such prohibition in Order 8 Rule 9 and moreover, the prohibition in the Proviso to Order 6 Rule 17 will apply only if the trial has actually commenced. In** _**Sasidharan**_ **, a learned Single Judge of this Court,** **O.P.(C) No.538 of 2014** 20 ## **after exhaustive survey of precedents, held as follows:** _**“Thus, on a close analysis of the decisions referred to above, the following conclusion is inevitable. When understood in the context of the proviso to Order 6 Rule 17 of the Code, the trial in a suit commences on the date on which the affidavit in lieu of examination in chief of a party of his witness is filed for the purpose of recording evidence. The bar under the proviso to Order 6 Rule 17 of the Code would be attracted to an application for amendment of pleadings filed after that date.”**_ **In the case at hand, the case was only listed for trial and the trial had not actually commenced.** **12. The discussion leads to the definite conclusion that the reasons stated by the Court below for rejecting the application seeking leave to file replication are unsustainable.** **In the result, the original petition is allowed by setting aside Ext.P12.** **Sd/V.G.ARUN JUDGE** **Scl/** **O.P.(C) No.538 of 2014** 21 ## **APPENDIX OF OP(C) 538/2014** ## PETITIONER EXHIBITS EXT.P1 COPY OF THE PLAINT IN O.S.817 OF 2006 ON THE FILE OF THE MUNSIFF'S COURT, TRIVANDRUM,FILED BY THE IST RESPONDENT EXT.P2 COPY OF THE PLAINT IN O.S.641/2006 ON THE FILE OF THE COURT OF THE PRINCIPAL SUB JUDGE,THIRUVANANTHAPURAM. EXT.P3 COPY OF THE WRITTEN STATEMENT FILED BY THE IST RESPONDENT IN O.S.641/2006 ON THE FILE OF THE COURT OF THE PRINCIPAL SUB JUDGE,THIRUVANANTHAPURAM. EXT.P4 COPY OF THE WRITTEN STATEMENT FILED BY THE 4TH RESPONDENT IN O.S.641/2006 ON THE FILE OF THE COURT OF THE PRINCIPAL SUB JUDGE,THIRUVANANTHAPURAM EXT.P5 COPY OF THE WRITTEN STATEMENT FILED BY THE 5TH RESPONDENT IN O.S.641/2006 ON THE FILE OF THE COURT OF THE PRINCIPAL SUB JUDGE,THIRUVANANTHAPURAM. EXT.P6 COPY OF THE WRITTEN STATEMENT FILED BY THE 6TH RESPONDENT IN O.S.641/2006 ON THE FILE OF THE COURT OF THE PRINCIPAL SUB JUDGE,THIRUVANANTHAPURAM EXT.P7 COPY OF THE PETITION FOR AMENDMENT,DATED 09.10.2013,FILED BY THE IST RESPONDENT EXT.P8 COPY OF THE APPLICATION FOR AMENDEMENT FILED BY THE FIRST DEFENDANT IN O.S.641 OF 2006 DATED 9.10.2013 EXT.P9 COPY OF THE REPLICATION FILED BY THE PETITIONER EXT.P10 COPY OF THE I.A.368 OF 2014 DATED 22.1.2014 IN O.S.641 OF 2006 ON THE FILE OF THE PRINCIPAL SUBORDINATE JUDGE'S COURT,TRIVANDRUM EXT.P11 COPY OF THE OBJECTIONS FILED BY THE IST DEFENDANT EXT.P12 COPY OF THE ORDER DATED 10.2.2014 IN I.A.368 OF 2014 IN O.S.641 OF 2006 ON THE FILE OF THE PRINCIPAL SUBORDINATE JUDGE'S COURT TRIVANDRUM.