Gopi Chakkunnath v. Sony Francis and others

``` OP(C) NO. 1058 OF 2021 ``` ``` 1 ``` # **`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. 1058 OF 2021`** ## **`OS 33/2021 OF I ADDITIONAL SUB COURT, THRISSUR`** ## **`PETITIONER/S:`** ``` GOPI CHAKKUNNATH AGED 55 YEARS S/O.RAMAN NAIR,CHAKKUNNATH HOUSE,VENGANELLUR.P.O, CHELAKKARA,THRISSUR DISTRICT. ``` ``` BY ADV ANOOP.V.NAIR ``` ## **`RESPONDENT/S:`** - `1 SONY FRANCIS ASSISTANT EXECUTIVE ENGINEER,ANTI POWER THEFT SQUAD(KSEB),VAIDYUTHI BHAVAN,KOTTAPPURAM, THRISSUR DISTRICT-680667.` - `2 V.S.SASIDHARAN, ASSISTANT ENGINEER,ANTI POWER THEFT SQUARD(KSEB),VAIDYUTHI BHAVAN,KOTTAPPURAM, THRISSUR DISTRICT-680667.` - `3 MURUKESH, ANTI POWER THEFT SQUAD(KSEB),VAIDYUTHI BHAVAN,KOTTAPPURAM,THRISSUR DISTRICT-680667.` - `4 K.K.PAVITHRAN, SUB ENGINEER,ANTI POWER OF THEFT SQUARD(KSEB), VAIDYUTHI BHAVAN,KOTTAPPURAM,THRISSUR DISTRICT-680667.` - `5 PRAVEEN KUMAR, ASSISTANT ENGINEER,KERALA STATE ELECTRICITY BOARD(KSEB),PAZHAYANNUR, THRISSUR DISTRICT-68-0587.` - `6 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, THRISSUR DISTRICT-680003.` ``` FOR R1 TO R5 BY ADV N.SATHEESH FOR R6 BY GOVT. PLEADER ``` ``` 2 ``` ## **`OP(C) NO. 1058 OF 2021`** ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 1058 OF 2021 ``` ``` 3 ``` ## **JUDGMENT** The original petition is filed challenging Ext.P7 order passed in I.A. No.3/2021 in O.S.No.33/2014 by the Court of the I Additional Subordinate Judge, Thrissur. The petitioner is the plaintiff and the respondents are the defendants in the suit. 2. The relevant background facts, leading to Ext.P7 order, in a nutshell, are:- (i) The petitioner has instituted Ext.P1 plaint against the respondents for damages. (ii) The respondents 1, 2, 3 and 5 have resisted the suit through Ext.P2 written statement. (iii) Before the commencement of trial, the petitioner filed I.A.No.3/2021 (Ext.P5) seeking leave to amend the plaint. The application was resisted by the respondents 1, 2, 3 and 5 through Ext.P6 written objection. (iv) The court below, by the impugned Ext.P7 order, has only partly allowed Ext.P5 application. (v) Ext.P7 order, rejecting one of the amendments sought ``` OP(C) NO. 1058 OF 2021 ``` ``` 4 ``` for in Ext.P5 application, is erroneous and unsustainable in law. Hence, the original petition. 3. Heard, Sri. Anoop V. Nair, the learned counsel appearing for the petitioner; Sri.N.Satheesh, the learned counsel appearing for the respondents 1 to 5 and the learned Government Pleader appearing for the 6[th] respondent. 4. The short point is, whether there is any error in Ext.P7 order. 5. The suit is filed by the petitioner against the respondents for damages. The respondents are resisting the suit through Ext.P2 written statement. 6. Before the commencement of trial, the petitioner filed Ext.P5 application seeking leave to carry out the following amendments in the plaint:- “Amendments to be made: 1. In the first line of para 3 of the plaint after "on 06.11.2012" insert "at 11.20 A.M." 2. In the 9[th] line of para 7 of the plaint after the words "entered therein" insert the words at 11:20 A.M. and disconnected the electricity ``` OP(C) NO. 1058 OF 2021 ``` ``` 5 ``` connection to the house." 3. In the 25[th] and 26[th] line of para 7 of the plaint strike out "and proceeded to disconnect the electricity connection to the house” and instead insert the words "after 1 P.M.” Thus electricity connection was disconnected by defendants 1 to 4 without authority". 7. The respondents 1, 2, 3 and 5 had filed Ext.P6 objection to Ext.P5 application, inter-alia, contending that the application was highly belated. 8. The court below, by the impugned Ext.P7 order, allowed amendments 1 and 2, but rejected the 3[rd] amendment on the ground that the petitioner was attempting to withdraw an admission, which is contrary to the pleadings on record. 9. On a careful reading of Ext.P5 application, it can be gathered that the petitioner intends to substitute the 25[th] and 26[th] lines of the plaint that the 5[th] respondent went to the spot after the electricity connection was disconnected at 1.00 p.m., instead of the pleading that the 5[th] respondent was at the spot before the disconnection of ``` OP(C) NO. 1058 OF 2021 ``` ``` 6 ``` the electricity. 10. Going by the amendments sought for in Ext.P5 application, it cannot be said that there is any withdrawal of admission. Even otherwise, the mere substitution of the pleading cannot cause any prejudice to the respondents because they always have a right to file a written statement and deny the above allegations and clarify their defence. 11. In **Life Insurance Corporation of India v. Sanjeev Builders Private Limited and another [(2022) SCC Online SC 1128]** , the Honourable Supreme Court has laid down elaborate guidelines for the Courts while deciding applications for amendment of pleadings. It is held that applications for amendment have to be liberally considered. Only when the amendment sought is to be incorporated would change the nature of the suit and set up an entirely new case, which is foreign to the plaint, the amendment is to be disallowed. 12. On an appreciation of Ext.P5 application and Ext.P6 objection, I am of the definite view that the ``` OP(C) NO. 1058 OF 2021 ``` ``` 7 ``` amendment will not alter or change the nature of the suit, and further, no prejudice will be caused to the respondents. The right of the respondents can very well be safeguarded and protected by permitting them to file their additional written statement(s) to the amended plaint. 13. On a conspectus of the pleadings and materials on record, the law on the point and the findings rendered above, I am inclined to exercise the supervisory powers of this Court under Article 227 of the Constitution of India and interfere with Ext.P7 order, against the partial dismissal of Ext.P5 application. Resultantly, I allow the original petition as follows:- - (i) Ext.P7 order, partially rejecting Ext.P5 application, is set aside. - (ii) Ext.P5 application is allowed in its entirety. - (iii) The petitioner shall carry out the amendment to the plaint within the prescribed time period. - (iv) The court below shall permit the respondents to file their additional written statement(s) to the amended plaint within one month from the date the amendment is carried out. ``` OP(C) NO. 1058 OF 2021 ``` ``` 8 ``` - (v) As the suit is of the year 2014, the Court of the Additional Subordinate Judge, Thrissur, is directed to consider and dispose of O.S.No.33/2014, in accordance with law and as expeditiously as possible. Sd/- ## **C.S.DIAS, JUDGE** okb/9.3.23 //True copy// P.S. to Judge ``` OP(C) NO. 1058 OF 20219 ``` ## **`APPENDIX OF OP(C) 1058/2021`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE PLAINT FILED BY THE`| ||`PLAINTIFF BEFORE THE 1ST ADDITIONAL SUB`| ||`COURT,THRISSUR NUMBERED AS O.S.NO.33/2014`| |`Exhibit P2`|`TRUE COPY OF THE WRITTEN STATEMENT FILED BY`| ||`THE DEFENDANTS 1,2,3 AND 5 IN O.S.NO.33/2014`| ||`ON THE FILE OF 1ST ADDITIONAL SUB`| ||`COURT,THRISSUR.`| |`Exhibit P3`|`TRUE COPY OF THE ORDER DATED 30.04.2013`| ||`BEARING NO.DCE-IJK/AE2/9-A04/2012-13/290`| ||`PASSED BY THE APPELLATE AUTHORITY`| |`Exhibit P4`|`TRUE COPY OF THE FIR AND THE SCENE MAHASAR`| ||`WHICH SHOWS THAT ELECTRICITY CONNECTION WAS`| ||`DISCONNECTED AT 11.20 AM ITSELF`| |`Exhibit P5`|`TRUE COPY OF THE I.A.NO.3/2021 IN`| ||`O.S.NO.33/2014 FILED BY THE PETITIONER FOR`| ||`AMENDMENT OF THE PLEADINGS`| |`Exhibit P6`|`TRUE COPY OF THE OBJECTION FILED BY THE`| ||`DEFENDANTS 1,2,3 AND 5,DATED 06.03.2021`| |`Exhibit P7`|`CERTIFIED COPY OF THE ORDER DATED 15.03.2021`| ||`IN I.A.NO.3/2021 IN O.S.33/2014,PASSED BY THE`| ||`1ST ADDITIONAL SUB COURT,THRISSUR.`|