Gangadharan Nair v. Balakrishnan Nair and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945** **OP(C) NO. 208 OF 2024** ## **PETITIONER(S)/PETITIONER/PLAINTIFF:** GANGADHARAN NAIR AGED 71 YEARS, S/O.KUNHIRAMAN ADIYODI, FARMER, RESIDING AT POOVATHUM CHOLAYIL HOUSE, AVIDANALLUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN – 673614. BY ADVS. B.KRISHNA MANI N.V.SANDHYA DHANUJA M.S ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS:** 1 BALAKRISHNAN NAIR, AGED 72 YEARS, S/O. KUNHIRAMAN ADIYODI, FARMER, RESIDING AT THANIKKAL HOUSE, AVIDANALLUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN – 673614. 2 DINAKARAN, AGED 57 YEARS, D/O.SARADHA AMMA, BUSINESS, RESIDING AT PARANCHERY HOUSE, AVIDANALLUR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN – 673614. 3 MUKUNDAN, D/O.LAKSHMI AMMA, FARMER, RESIDING AT ADAYAR HOUSE, NADUVANNUR AMSOM, KAVIL DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN – 673614. 4 SASIDHARAN ADIYODI, S/O.GOPALAN NAIR, FARMER, RESIDING AT PUTHIYOTTUMKUZHI HOUSE, KAYANNA VILLAGE, CHERUKKADAU DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN – 673527. BY ADVS. MAYANKUTTY MATHER K.I KALLIYANI KRISHNA B.(K/000466/2019) **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C) NO.208 OF 2024** ## **- 2 -** **==> picture [145 x 11] intentionally omitted <==** ## **Dated, this the 09[th] day of February, 2024** **Plaintiff in O.S. No.9/2019 of the Munsiff's Court, Koyilandy, is the petitioner herein. The plaintiff is aggrieved by Exts.P8 and P9 orders, which rejected an amendment application preferred after the closure of evidence. Ext.P9 rejected an application to re-open the evidence. Exts.P8 and P9 are under challenge in this Original Petition.** **2. Heard the learned counsel for the petitioner and the respondents.** **3. Learned counsel for the petitioner would submit that he got the property in the year 1987 by virtue of a settlement deed executed by his father and the property scheduled in the plaint has an extent of** **OP(C) NO.208 OF 2024** ## **- 3 -** **60 cents. The Commissioner filed a report and plan vide Ext.P3, whereunder the said 60 cents is seen divided by a road; 35 cents forming part of the northern side and 25.5 cents, of the southern side of the said road. The property of the defendants is on further north of the said 35 cents, which belongs to the petitioner/ plaintiff. It is in the changed circumstances and especially in the wake of Ext.P3 report that, an amendment became necessary to confine the scheduled property in the plaint to the above referred 35 cents, since there is no possibility of any trespass to the 25.5 cents, which is lying on the southern side of the road, where the defendants are not sharing any boundary. It is true that there was some delay in seeking the amendment sought for. However, for that reason alone, the amendment application is not liable to be rejected, is the submission made by the learned counsel for the petitioner. Learned counsel would also submit that allowing the amendment application will not** **OP(C) NO.208 OF 2024** ## **- 4 -** **cause any prejudice to the respondents/defendants, since the 35 cents, which is now sought to be specifically scheduled, forms part and parcel of the schedule incorporated to the plaint, wherefore, the injunction application is in any way liable to be considered atleast with respect to the said 35 cents.** **4. Per contra, these submissions were refuted by the learned counsel for the respondents. It was pointed out that the Commission report vide Ext.P3 was filed as early as on 04.01.2023, whereas Ext.P4 application for amendment was filed only on 15.01.2024, which is after closure of evidence and after completion of arguments. According to the learned counsel, the amendment sought for was highly belated and it is squarely in the teeth of the proviso to Order VI, Rule 17 of the Code of Civil Procedure. Learned counsel invited the attention of this Court to paragraph No.5 of the impugned order,** **OP(C) NO.208 OF 2024** ## **- 5 -** **wherein the timelines are indicated, to contend that there was absolutely no due diligence observed on the part of the petitioner/plaintiff. It was also pointed out that the reason stated for not preferring an application earlier is not liable to be recognized at all. If the reason that the petitioner/plaintiff did not get proper advice, is to be accepted, the same will be an excuse in every litigation, which cannot be countenanced at all.** **5. Having heard the learned counsel appearing on both sides, this Court finds little merit in the instant Original Petition. This Court notice that Ext.P3 commission report and plan were filed as early as on 04.01.2023. The suit was listed for trial to December, 2023 and the plaintiff was examined on 05.12.2023. After defendants' evidence, the case was posted for hearing on 16.12.2023, on which date, learned counsel for the plaintiff sought for time and he was finally heard on 18.12.2023. It** **OP(C) NO.208 OF 2024** ## **- 6 -** **is thereafter that, the instant Ext.P4 application for amendment was filed on 15.01.2024. As rightly canvassed by the learned counsel for the respondent, amendment sought for is squarely in the teeth of the proviso to Order VI, Rule 17. Learned counsel for the respondent relied upon a judgment of the Hon'ble Supreme Court in** _**Vidyabai & Ors. v. Padmalatha & Another**_ **[(2009) 2 SCC 409]. In paragraph no.20 of the said judgment, the Hon'ble Supreme Court, after referring to the decision in** _**Salem Advocate Bar Association v. Union of India**_ **[(2005) 6 SCC 344] concluded as follows:-** _**“20. However, proviso appended to O.6 R.17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.”**_ ## **6. In the given facts, the due diligence component** **is far from satisfactory, as is evident from the** **OP(C) NO.208 OF 2024** ## **- 7 -** **timeline narrated in paragraph no.5 above. The petitioner/plaintiff chose to prefer an application for amendment, not only after the commencement of the trial, but also, after conclusion of the arguments. The amendment application is premised on the contents of Ext.P3 commission report and plan, which was filed on 04.01.2023, whereas the amendment application is preferred only on 15.01.2024. As canvassed by the respondent, the explanation offered is also far from satisfactory and hence not liable to be accepted. The jurisdictional fact as envisaged in the proviso to Order VI Rule 17, is not satisfied. In the circumstances, this Court cannot find any infirmity or illegality with respect to the impugned Exts.P8 and P9 orders.** ## **7. Insofar as the submission of the learned counsel** **for the petitioner that the 35 cents of land, which is sought to be incorporated separately as B schedule, was part and parcel of the existing** **OP(C) NO.208 OF 2024** **- 8 -** **schedule to the plaint and that the relief of injunction is liable to be granted, if the plaintiff is otherwise entitled for the same, all what this Court needs to observe is that the petitioner will be at liberty to pursue his arguments before the learned Munsiff, who, in turn, will deal with the proposition canvassed by the learned counsel, in accordance with law.** **The Original Petition is disposed of, as above.** **Sd/-** **C. JAYACHANDRAN JUDGE** Skk//08.02.2024 **OP(C) NO.208 OF 2024** ## **- 9 -** ## **APPENDIX OF OP(C) NO.208/2024** ## **' - PETITIONER S EXHIBITS:** EXHIBIT-P1 A TRUE COPY OF THE O.S. 9/2019 FILED BY THE PETITIONER BEFORE THE MUNSIFS COURT, KOYILANDY DATED 15/1/2019. EXHIBIT-P2 A TRUE COPY OF THE WRITTEN STATEMENT DATED NIL IN O.S. 9/2019 BEFORE THE MUNSIFS COURT, KOYILANDY. EXHIBIT-P3 A TRUE COPY OF THE REPORT AND A SURVEY PLAN DATED 4/1/2023 SUBMITTED BY THE COMMISSIONER IN O.S. 9/2019 BEFORE THE MUNSIFS COURT, KOYILANDY. EXHIBIT-P4 A TRUE COPY OF THE I.A.NO.11/2024 DATED 15/1/2024 IN O.S.NO 9/2019 BEFORE THE MUNSIFS COURT, KOYILANDY. EXHIBIT-P5 A TRUE COPY OF THE I.A.NO.12/2024 DATED 3/1/2024 IN O.S.NO 9/2019 BEFORE THE MUNSIFS COURT, KOYILANDY. EXHIBIT-P6 A TRUE COPY OF THE OBJECTION DATED 15/1/2024 IN I.A.11/2024 IN O.S.NO 9/2019 BEFORE THE MUNSIFS COURT, KOYILANDY. EXHIBIT-P7 A TRUE COPY OF THE OBJECTION DATED 15/1/2024 IN I.A. 12/2024 IN O.S.NO 9/2019 BEFORE THE MUNSIFS COURT, KOYILANDY. EXHIBIT-P8 A TRUE COPY OF THE ORDER DATED 20/1/2024 IN I.A.11/2024 IN O.S.NO 9/2019 BEFORE THE MUNSIFS COURT, KOYILANDY. EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 20/1/2024 IN I.A. 12/2024 IN O.S.NO 9/2019 BEFORE THE MUNSIFS COURT, KOYILANDY.