Gopinathan v. K.N. Ravichandran and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 OP(C).No. 888 of 2011(O) -----------------------OS.165/2005 of SUB COURT, OTTAPPALAM .................... PETITIONER : ------------------- GOPINATHAN, S/O.MANIKKANDATH CHUNDEKKAT DECEASED RAMAKRISHNA GUPTHAN, RESIDING AT PULLUNDASSERY AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): --------------- 1. K.N.RAVICHANDRAN, S/O.LATE SANKARA GUPTHAN, RESIDING AT 'SUDHARMA', MANIKKANDATH CHOORAMATH CHUNDEKKAT DECEASED SANKARA GUPTHAN (C.S.GUPTHAN), RESIDINGAT PULLUNDASSERY AMSOM, OTTAPALAM TALUK, PALAKKAD - 678 633 2. CHANDRAMOHANAN, S/O.MANIKKANDATH CHUNDEKKAT DECEASED RAMAKRISHNA GUPTHAN. 3. MALATHI BALAKRISHNAN, D/O.MANIKKANDATH CHUNDEKKAT DECEASED RAMAKRISHNA GUPTHAN. 4. LEELA SUBRAMANIAN, D/O.MANIKKANDATH CHUNDEKKAT DECEASED RAMAKRISHNA GUPTHAN. RESPONDENTS 2 TO 4 ARE RESIDING AT PULLUNDASSERY AMSOM, AZHIYANNOORDESOM, OTTAPALAM TALUK, PALAKKAD - 678633. O.P.(C) NO.888 OF 2011 -2- 5. KADAMBAZHIPPURAM SERVICE CO-OP.BANK LTD KADAMBAZHIPPURAM, REPRESENTED BY ITS SECRETARY, PIN 678 631. 6. PALAKKAD DISTRICT CO-OPERATIVE BANK, MAIN BRANCH, PALAKKAD, REPRESENTED BY ITS MANAGER, PIN 678 001. 7. S.B.T., PERINGODE BRANCH, PARASSERY P.O PALAKKAD DISTRICT, REPRESENTED BY ITS MANAGER. 8. CANARA BANK, KONGAD, REPRESENTED BY ITS MANAGER 9. PUNJAB NATIONAL BANK, KADAMPAZHIPPURAM P.O. REPRESENTED BY ITS MANAGER, PIN 678 631. - ADV. SRI.T.SETHUMADHAVAN FOR R7 SRI.PUSHPARAJAN KODOTH FOR R7 - SRI.K.JAYESH MOHANKUMAR FOR R7 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 888/2011 ## APPENDIX ## PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE APPLICATION FOR AMEDNMENT DATED 2.1.2011. EXT.P2: COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 6.1.2011. EXT.P3: COPY OF THE ORDER IN I.A.NO.26/2011 IN O.S.NO.165/2005 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF OTTAPALAM DATED 29.1.2011. ## RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN, J.** ------------------------------------ O.P.(C).No.888 of 2011 ------------------------------------Dated this the 7th day of March, 2011 ## **JUDGMENT** The question involved in this Original Petition is whether a defendant could be allowed to amend the name of his father in the vakalath filed on his behalf in the suit. 2. The petitioner filed O.S.No.165 of 2005 on the file of the court of the Subordinate Judge of Ottappalam. In the plaint, the first respondent herein, who is the fourth defendant in the suit was shown as K.N.Ravichandran, son of Narayana Gupthan. The fourth defendant engaged a counsel who filed vakalath in which the fourth defendant was shown as the son of Narayana Gupthan, on the basis of what was stated in the cause title in the plaint. In the written statement filed by the fourth defendant, he stated that his biological father is Narayana Gupthan, but he is the O.P.(C) No.888/2011 2 adopted son of C.S.Gupthan. The suit is for partition of the property which belonged to C.S.Gupthan who died issuless. The fourth defendant claims to be a legatee under the Will allegedly executed by C.S.Gupthan. 3. There is no dispute for the fourth defendant that he is the son of Narayana Gupthan. His case is that he is the adopted son of C.S.Gupthan. That is a matter to be decided in the suit. However, coming to know that a mistake crept in the vakalath and other papers, the fourth defendant filed I.A.No.26 of 2011 to amend the vakalath and other papers to delete his father's name shown as Narayana Gupthan and to substitute it as C.S.Gupthan. The application was very seriously opposed by the plaintiff. He filed a counter contending that the application is not maintainable. The plaintiff contended that C.S.Gupthan @ Sankara Gupthan never adopted the fourth defendant. He also raised a contention that the fourth defendant is the son of Narayana O.P.(C) No.888/2011 3 Gupthan. It was pointed out by the plaintiff that the vakalath and affidavits submitted by the fourth defendant would show that he is the son of Narayana Gupthan. The change of name of the father was sought to be made only to get the property. The plaintiff contended that the fourth defendant is a teacher and therefore, it cannot be said that he was unaware of the real facts. 4. The court below allowed the application for amendment by the order impugned in this Original Petition. The court below observed in the order that there is no dispute that the fourth defendant is the son of Narayana Gupthan. The fourth defendant also does not dispute the same. The contention of the fourth defendant is that C.S.Gupthan is his adoptive father and therefore, he is entitled to inherit the assets of C.S.Gupthan. The contention put forward by the plaintiff, that an admission was sought to be taken away by the amendment sought for by the fourth defendant, was O.P.(C) No.888/2011 4 repelled by the court below. It was also held that no prejudice would be caused to the plaintiff by allowing the amendment. 5. Sri.V.Chitambaresh, the learned senior counsel appearing for the petitioner submitted that Rule 17 of Order 6 empowers the court to amend only the pleadings. Vakalath is not a pleading and therefore, the court below was not justified in allowing the amendment. 6. In the present case, the parties have filed their pleadings. According to the plaintiff, the fourth defendant is the son of Narayana Gupthan. According to the fourth defendant, his adoptive father is C.S.Gupthan. Even if in the vakalath, affidavit or other papers it is shown by the fourth defendant that he is the son of Narayana Gupthan, that does not go against his contentions in the written statement. The fourth defendant only wanted to show in the vakalath and other papers that he is the adopted son of C.S.Guptan. In the O.P.(C) No.888/2011 5 written statement filed by him, his specific case is that he is the adopted son of C.S.Gupthan and his biological father is Narayana Gupthan. By the amendments sought to be made, the fourth defendant has not sought to change the case put forward by him. No admission is taken away and no new case is sought to be put forward. A mistake crept in while filling up the vakalath and while showing the name of the father in the affidavit, is sought to be corrected by the fourth defendant. The court below rightly held that the correction would not take away the admission made by the fourth defendant and that no prejudice would be caused to the plaintiff. 7. Section 153 of the Code of Civil Procedure provides that the court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. I am of the O.P.(C) No.888/2011 6 view that the expression "proceedings" includes vakalath and affidavit filed by the parties in the suit. No litigant shall suffer due to a mistake committed either by his counsel or by the clerk while filling up the vakalath or while entering the name of the father of the deponent in the affidavit. The purpose of amendment is to avoid multiplicity of proceedings. Another object of the general power to amend under Section 153 C.P.C. is to enable the court to determine the real question or issue involved in the case. When the real dispute involved in the case is known to both parties, no prejudice would be caused to any party by allowing the prayer for correcting the mistake. It cannot be said that the court has no power to allow a party to correct a mistake in the papers submitted by him including the vakalath. It is true that the vakalath does not constitute a pleading as defined in Rule 1 of Order VI of the Code of Civil Procedure. "Pleading" shall mean plaint or written statement. I am of the view that Section 153 of the Code of Civil Procedure confers jurisdiction on the court to O.P.(C) No.888/2011 7 allow such correction to be made. Even assuming that Section 153 does not apply, nothing prevents the court from exercising the jurisdiction under Section 151 of the Code of Civil Procedure which saves the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the court. Section 152 of the Code of Civil Procedure provides that clerical or arithmetical mistakes in judgments, decrees or orders or errors arising out of accidental slip or omission may at any time be corrected by the court either by its own motion or on application of any of the parties. Going by the scheme of the Code of Civil Procedure, it can safely be held that the court does not penalise a party for an accidental slip or omission on his part or a mistake committed by him in the pleadings or in any other paper submitted before court. In Baldeo vs. Lachhmi Narain : Air 1934 Allahabad 810, it was held that an omission of Vakil's name in the vakalatnama can be supplemented invoking Section 153 of the Code of Civil Procedure. I do not O.P.(C) No.888/2011 8 find any ground to accept the contention raised by the learned senior counsel for the petitioner. For the aforesaid reasons, the Original Petition is dismissed. It is made clear that the plaintiff would be entitled to file such objections which are necessary to indicate his contention on the basis of the correction carried out. **K.T.SANKARAN JUDGE** csl