Gopinathan Pillai v. Sumathykutty Amma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN TUESDAY, THE 28TH DAY OF OCTOBER 2014/6TH KARTHIKA, 1936 ## **OP(C).No. 911 of 2010 (O)** AGAINST THE ORDER IN I.A.NO.3382/2010 IN AS.NO.56/2010 OF THR COURT OF THE ADDL.SUB JUDGE, KOLLAM DATED 25-10-2010 AGAINST THE JUDGMENT IN OS.NO.188/2002 OF THE COURT OF THE ADDITIONAL MUNSIFF, KOLLAM, DATED 15-10-2005 ## PETITIONER: GOPINATHAN PILLAI,POURNIKA VEEDU, CHERIYELA WARD, THRIKOVILVATTOM VILLAGE, KOLLAM. BY ADVS. SRI.K.SUBASH CHANDRA BOSE SRI.K.J.JOMSON ## RESPONDENTS: 1. SUMATHYKUTTY AMMA, D/O.CHELLAMMA AMMA, SIVA MANDIRAM, CHERIYELA WARD, THRIKOVILVATTOM VILLAGE, KOLLAM - 691 001. 2. SREEJAKUMARI, D/O.CHELLAMMA AMMA, SIVA MANDIRAM, CHERIYELA WARD, THRIKOVILVATTOM VILLAGE, KOLLAM - 691 001. 3. RADHAKRISHNA PILLAI, S/O.GOPALAKRISHNA PILLAI, SIVA MANDIRAM, CHERIYELA WARD THRIKOVILVATTOM VILLAGE, KOLLAM - 691 001. R1 TO R3 BY ADV. SRI.ALEX N.MATHEW (KOLLAM) R1 TO R3 BY ADV. SRI.H.RAMANAN R1 TO R3 BY ADV. SRI.JAMES JOSE THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **O.P.(C) NO.911 OF 2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.188/2002 BEFORE THE MUNSIFF'S COURT, KOLLAM. - EXT.P2 TRUE COPY OF THE TRIAL COURT JUDGMENT IN O.S.NO.188/2002 BEFORE THE MUNSIFF'S COURT, KOLLAM. - EXT.P3 TRUE COPY OF THE APPEAL MEMORANDUM IN A.S.NO.56 OF 2010 BEFORE THE APPELLATE COURT, KOLLAM. - EXT.P4 TRUE COPY OF THE APPLICATION FOR AMENDMENT FILED IN I.A.NO.3382 OF 2010 IN A.S.NO.56 OF 2010 BEFORE THE ADDITIONAL SUB COURT, KOLLAM. - EXT.P5 TRUE COPY OF THE OBJECTION TO THE APPLICATION FOR AMENDMENT FILED IN I.A.NO.3382 OF 2010 IN A.S.NO.56 OF 2010 BEFORE THE ADDITIONAL SUB COURT, KOLLAM. - EXT.P6 TRUE COPY OF THE ORDER IN I.A.NO.3382 OF 2010 IN A.S.NO.56 OPF 2010 BEFORE THE ADDITIONAL SUB COURT, KOLLAM. ## **RESPONDENTS' EXHIBITS** : NIL //TRUE COPY// AHZ/ ## **“C.R.”** ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------O.P.(C) NO. 911 OF 2010 (O) -----------------------------------------------------Dated this the 28[th] day of October, 2014** ## **JUDGMENT** The question involved in this Original Petition is whether an application for amendment of the plaint can be maintained in an appeal filed after the enactment of the CPC Amendment Act 22 of 2002. 2. The petitioner filed A.S.No.56 of 2010 on the file of the Court of the Additional Subordinate Judge of Kollam challenging the judgment and decree in O.S.No.188 of 2002, Munsiff's Court, Kollam. In the appeal, the petitioner filed an application for amendment of the plaint (I.A.No.3382 of 2010). The lower Appellate Court dismissed the application on the ground that as per the proviso to Rule 17 of Order VI of the Code of Civil Procedure, no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the ## O.P.(C) NO.911 OF 2010 :: 2 :: commencement of trial. The court below also held that on the merits, the application for amendment cannot be allowed. ## 3. Rule 17 of Order VI of the Code of Civil Procedure reads as follows: “17. Amendment of pleadings.-- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” ## 4. As held by the Supreme Court in **Rajesh Kumar Aggarwal** v. **Modi** (2006 (3) KLT 192 (SC)) and **Baldev Singh** v. **Manohar Singh** (2006 (3) KLT 953 (SC)), Rule 17 of Order VI consists of two parts. The first part provides that the Court may, at any stage of the O.P.(C) NO.911 OF 2010 :: 3 :: proceedings, allow either party to amend his pleadings and the second part provides that such amendment shall be made for the purpose of determining the real controversy between the parties. The second part is imperative and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. ## 5. In **Salem Advocate Bar Association, T.N.** v. **Union of** **India** ((2005) 6 SCC 344), the Supreme Court held thus: “The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.” ## 6. In **Chander Kanta Bansal** v. **Rajinder Singh Anand** ((2008) 5 SCC 117), the Supreme Court held thus: “The new proviso lays down that no application for amendment shall be allowed after the commencement O.P.(C) NO.911 OF 2010 :: 4 :: of the trial, unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise. 13. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.” O.P.(C) NO.911 OF 2010 :: 5 :: ## 7. In **Eapen Antony** v. **Joseph** (2009 (2) KLT 849), the scope of the proviso to Rule 17 of Order VI of the Code of Civil Procedure was considered and it was held thus: “The proviso restricts the power of the Court to allow an application for amendment after the trial has commenced, unless the conditions mentioned in the proviso are satisfied. If the exception to the first part of the proviso is satisfied and the Court comes to the conclusion that in spite of due diligence, the party could not raise the matter before commencement of the trial, it does not restrict the power of the Court to allow the amendment even after closure of the evidence. In such a case, the main part of R.17 empowering the Court to allow amendment at any stage of the proceedings will come into operation. A stage after the closure of evidence and before pronouncement of the judgment is also a stage at which the Court may exercise the jurisdiction under R.17 of O.VI of the Code of Civil Procedure.” ## 8. It is well settled that the pleadings can be amended even at the appellate stage. O.P.(C) NO.911 OF 2010 :: 6 :: 9. The question which arises for consideration is whether an application for amendment of the pleadings can be maintained in appeal after the introduction of the proviso to Rule 17 of Order VI of the Code of Civil Procedure. The proviso was added in Rule 17 of Order VI not to take away the powers of the Appellate Court in entertaining applications for amendment of the pleadings. The proviso was intended to ensure speedy trial of cases. It was aimed at curtailing protraction of cases at the trial stage. Even in cases where the trial has commenced, the Court can allow amendment of pleadings if it comes to the conclusion that in spite of due diligence, the party could not file the application before commencement of trial. One of the tests that would be applied by the Court in allowing the amendment would be whether the amendment is necessary for the purpose of determining the real controversy between the parties. The Appellate Court, in appropriate cases, allow the parties to amend the pleadings, if the Appellate Court considers that such amendment is necessary for the purpose of determining the real question in controversy between the parties. The Appellate Court is O.P.(C) NO.911 OF 2010 :: 7 :: not precluded from allowing an application for amendment on the ground that no application for amendment was filed by the party before the trial commenced. In other words, the power of the Appellate Court to allow amendment is not restricted to those cases where the application for amendment was filed before commencement of the trial. Even the trial court could allow the amendment application filed after commencement of trial, if the grounds mentioned in the proviso are satisfied. It is also not correct to say that the Appellate Court could only consider those cases for amendment where the same was rejected by the trial court on the ground that the trial had commenced. In short, the power of the Appellate Court to allow amendment of the pleadings is not restricted or curtailed by the proviso to Rule 17 of Order VI of the Code of Civil Procedure. This is not to say that a party who could not have filed an application before the trial court in view of the proviso to Rule 17 could always reserve that right to be exercised before the Appellate Court. It is true that the Appellate Court would ask the party applying for amendment as to why he did not make an application before the trial court and why he did not make an application before the trial O.P.(C) NO.911 OF 2010 :: 8 :: commenced. The Appellate Court may also ascertain whether the party applying for amendment could not have raised the matter before commencement of the trial. All these parameters were being applied by the Appellate Courts even before the introduction of the proviso to Rule 17 of Order VI of the Code of Civil Procedure. The Appellate Courts have not lost such powers and discretion after the introduction of the proviso to Rule 17 of Order VI CPC. 10. A proviso cannot, by construction, be permitted to defeat the basic intent expressed in the substantive provision. (See **N.R.Narayana Pillai** v. **Joint Registrar and others (1993 (1) KLJ 440), Vishesh Kumar** v. **Shanti Prasad (AIR 1980 SC 892)** and **Dwarka Prasad** v. **Dwarka Das Saraf [(1976) 1 SCC 128]** . A proviso, normally does not enlarge the scope of the Section and in most cases it cuts down or makes an exception to the main provision. The proper functioning of a proviso is to except and deal with a case which would otherwise fall within the general knowledge of the main Act. [See **State of Rajastan** v. **Mrs. Leela Jain (AIR 1965 SC 1296)]** . O.P.(C) NO.911 OF 2010 :: 9 :: 11. In N.S.Bindra's Interpretation of Statutes Eighth Edition, it is stated thus: “The duty of the Court also must be to give to the proviso as far as possible a meaning so restricted as to bring it within the ambit and purview of the section itself. If a proviso is capable of a wider connotation and is also capable of a narrower connotation, and if the narrower connotation brings it within the purview of the section then the Court must prefer the narrower connotation rather than the wider connotation of the two possible interpretations, the Court should prefer that one which brings it within the purview of the section. Court is not justified in construing proviso as enlarging the scope of the enactment when it can be fairly and properly construed without attributing it that effect.” ## 12. In **Kunjukrishna Pillai P. and another** v. **D.Sreekantan** **Nair and others** (2008(3) KHC 249(SC)), the Supreme Court held thus: “We, however, find that the High Court ought to have allowed the applications under Order 6 Rule 17 and Order 41 Rule 27 CPC. While it is true that the O.P.(C) NO.911 OF 2010 :: 10 :: amendment application was not filed before the trial commenced, that by itself cannot be a ground for rejecting the application. The first defendant was not attempting to put forth any ground inconsistent with what was stated in the written statement. He was only attempting to introduce an additional ground in so far as suit schedule item No.5 is concerned. On the facts and circumstances of this case, we are satisfied that the said amendment application requires to be allowed, and, as a consequence, application under Order 41 Rule 27 for additional evidence has to be allowed.” 13. For the aforesaid reasons, I am of the view that the court below was not right in holding that the application for amendment of the plaint is liable to be rejected on the ground that no application for amendment shall be allowed after the trial has commenced. 14. The court below considered the application on the merits and held that the application cannot be allowed. I am not dealing with the question whether the application could be allowed on the merits, since it would be ideal if the Appellate Court considers the application along with the appeal. If such a course is adopted, the O.P.(C) NO.911 OF 2010 :: 11 :: Appellate Court would be in a better position to consider the scope and ambit of the amendment sought to be introduced and whether the application should be allowed or not. For the reasons mentioned above, the Original Petition (Civil) is allowed and the order dated 25.10.2010 passed by the court below is set aside. The Appellate Court shall consider the application along with the appeal. The court below shall consider the contentions raised by both parties afresh. **K.T.SANKARAN Judge** ahz/