Gouri Amma Thankamma v. N. Krishna Kurup and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941** ## **FAO (RO).No.3 OF 2019** **AGAINST THE JUDGMENT IN AS 64/1994 DATED 01-12-2018 OF DISTRICT COURT ,KOLLAM** **AGAINST THE JUDGMENT IN OS 358/1990 DATED 11-02-1994 OF MUNSIFF'S COURT, KARUNAGAPPALLY** ## **APPELLANT/RESPONENT/FIRST DEFENDANT:** **GOURI AMMA THANKAMMA AGED 63 YEARS** **PALOOR VEEDU, ATHINADU NORTH, KOTTAKAPURAM MURI, KULASEKHAPURAM VILLAGE** ## **BY ADV. SRI.B.KRISHNA MANI** ## **RESPONDENTS/ADDITIONAL 3RD APPELLANT AND ADDITIONAL 3RD RESPONDENT:** **1 N.KRISHNA KURUP RESIDNG AT KPS BUILDING, KOTTAKKUPURAM FROM MOOLANKARA THEKKETHIL VEEDU, KOTTAKKUPURAM MURI, ATHINAD VADAKKU, CLAPPANA P.O., KOLLAM-690 546** - **2 T.KRISHNA KUMAR** **PALOOR VEEDU, KOTTAKKAPURAM MURI, ATHINAD NORTH, KULASEKHARAPURAM VILLAGE, KOLLAM DISTRICT-690 542** **R1 BY ADV. SRI.P.GOPAL R1 BY ADV. SRI.B.MURALEEDHARAN** **THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 29.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **FAO (RO).No.3 OF 2019 2** ## **JUDGMENT** The 1[st] defendant in O.S.No.358 of 1990, on the files of the Munsiff's Court, Karunagappally, has filed this appeal impugning the judgment of the First Appellate Court, namely, I Additional District Court, Kollam; as per which, the judgment and decree passed by the Trial Court has been set aside and the suit remanded for fresh trial, after allowing certain amendments sought for by the plaintiff. 2. The appellant contends that the First Appellate Court was completely in error in having remanded the matter to the Trial Court, particularly because, in the judgment in S.A.No.65 of 2002, which arose from an earlier round of litigation, a learned Judge of this Court had directed the said Court to decide the matter on its merits, after considering the application preferred by the plaintiff for amendment ## **FAO (RO).No.3 OF 2019 3** of the plaint. The appellant, therefore, contends that the judgment of the First Appellate Court, impugned in this appeal, goes contrary to the directions of this Court in the judgment in S.A.No.65 of 2002 and therefore, that it be set aside. 3. I have heard Shri.B.Krishna Mani, learned counsel appearing for the appellant and Shri.P.G.Parameswara Panicker, learned Senior Counsel, instructed by Shri.P.Gopal, learned counsel appearing for the respondents. 4. Before I proceed to analyze the various submissions made by the learned counsel and the learned Senior Counsel for the parties, it is conceded before me that when the First Appellate Court had earlier refused to entertain the application, preferred by the respondents/plaintiffs in the suit, for amendment of the plaint, the matter had reached this Court in the afore ## **FAO (RO).No.3 OF 2019 4** mentioned S.A.No.65 of 2002. A learned Judge of this Court had considered the facts of the case in great detail and had set aside the judgment of the First Appellate Court, with a consequential direction to it to consider the application for amendment and to “dispose of the same on merits”. It is pursuant thereto that the First Appellate Court has now issued the impugned judgment. 5. As I have already indicated above, the thrust of the arguments of Shri.B.Krishna Mani, learned counsel for the appellant, is that, since this Court had, in the judgment in S.A.No.65 of 2002, directed the First Appellate Court to dispose of the appeal itself on its merits, it could not have remanded the matter to the Trial Court, as has been done now. **==> picture [324 x 12] intentionally omitted <==** **FAO (RO).No.3 OF 2019 5** Mani submits that the amendments now allowed by the First Appellate Court are totally untenable and goes against the nature and tenor of the original plaint and therefore, that such an exercise could not have been done by it while acting under Order VI Rule 17 of the Code of Civil Procedure (CPC for short). He says that this is more so because, the proviso to Order VI Rule 17 of the CPC creates an embargo in the First Appellate Court from considering amendments to the plaint after the trial had been completed. He thus prays that this appeal be allowed and the judgment of the First Appellate Court, impugned herein, be set aside. ## 7. In answer to the afore submissions, Shri.P.G.Parameswara Panicker, learned Senior Counsel, began his meticulous submissions by pointing out that it has been well settled, through a catena of judgments-both of this Court and that of ## **FAO (RO).No.3 OF 2019 6** the Hon'ble Supreme Court-that the power of an Appellate Court to grant relief under Order VI Rule 17 of the CPC is not circumscribed by the proviso to it and therefore, that it is fully empowered to allow it, as long as it is found necessary for the purpose of determining the real questions in controversy between the parties. 8. The learned Senior counsel cites a plethora of judgments, in substantiation of his above submissions, namely, _**Pirgonda Hongonda Patil, Appellant v. Kalgonda Shidgonda Patil and Others, Respondents [AIR 1957 SC 363]; M.Peres & Sons v. Peter @ Puravath [1960 KLT 731]; Haridas Aildas Thadani v. Godrej Rustom Kermani [1982 KLT (SN) 25]; Soman Nair v. Prathapan [1986 KLT 844]; Yamuna v.**_ _**Bhavani [1987 (1) KLT 223]; Parvathy v. IPB [1988 (1) KLT 228]; Kunheedu v.**_ _**Marakkar & Others [1989 (1) KLJ 92]; Malu**_ **FAO (RO).No.3 OF 2019 7** _**Amma v. Balakrishnan Nair [1992 (2) KLT (SN) 20]; B.K.Narayana Pillai v. Parameswaran Pillai and Another [(2000) 1 SCC 712]; Varghese v. K.S.E.B. [2001 (2) KLT 627]; Ragu Thilak D. John v. S.Rayappan and Others [(2001) 2 SCC 472]; Rajesh Kumar Aggarwal v. Modi [2006 (3) KLT 192]; State Bank of Hyderabad v. Town Municipal Council [(2007) 1 SCC 765] and Mohanan Nair v. Premachandran Nair [2016 (1) KLT 21]**_ and added to this, by pointing out the suit in question had been instituted by the plaintiffs even before the proviso to Order VI Rule of the CPC had been introduced, with effect from 01/07/2007. 9. Shri.P.G.Parameswara Panicker, thereafter, submitted that even a glance through the judgment of the learned Single Judge of this Court in S.A.No.65 of 2002 would make it manifest that the amendments now allowed by the Lower Appellate Court ## **FAO (RO).No.3 OF 2019 8** are fully deserving of being so ordered, particularly because this Court has already found that the contentions of the defendant/appellant herein, that the plaint schedule property is part of another extent of 67 cents, was not tenable and that obviously, thus the amendments now allowed are absolutely necessary for determining the real issues in controversy between the parties. 10. The learned Senior Counsel further contended that the judgment in S.A.No.65 of 2002 has been wrongly read and interpreted by Shri.B.Krishna Mani, since the directions therein was only that the First Appellate Court must consider the amendment application, namely, I.A.No.4097 of 1995, and dispose of the same on merits. He says that this can only mean that the said I.A was to be disposed of on its merits, which is evident from the further directions in the judgment that **FAO (RO).No.3 OF 2019 9** the said Court will “dispose of this appeal only after addressing I.A.No.4097 of 1995”( _sic_ ). The learned Senior Counsel, therefore, says that there is no direction in the judgment in S.A.No.65 of 2002 that the First Appellate Court must decide the appeal on its merits and that it cannot remand it, invoking its powers under Section 107 of the CPC or Order XLI Rule 23A thereof. The learned Senior Counsel, therefore, prays that this appeal be dismissed. 11. I have considered the afore submissions and have also examined the various materials available on record. 12. It is now too well established to be restated by this Court that the power under Order VI Rule 17 of the CPC as far as the Appellate Court, is concerned is not circumscribed by the proviso thereto. In any event of the matter, the proviso **FAO (RO).No.3 OF 2019 10** does not really create an embargo in the exercise of power under Order VI Rule 17 of the CPC, but only a note of caution that the amendments are not to be allowed trivially or without proper thought after the trial of the suit has commenced. This is clear from the fact that the proviso only mandates that an amendment can be allowed after the trial has commenced, but only after it is assessed whether the parties seeking the amendment had, in spite of exercise of due diligence, could not have brought the amendment to the notice of the Court. Therefore, it is obvious that Order VI Rule 17 of the CPC, even after the proviso was added to it in the year 2010, would certainly not rob the power of the Appellate Court to allow amendments at the appellate stage; and therefore, the submissions to this effect by Shri.B.Krishna Mani are, in my view, without any merit. ## **FAO (RO).No.3 OF 2019 11** 13. In fact, my views as afore are fully guided by the various judgments cited by Shri.P.G.Parameswara Panicker, learned Senior Counsel. 14. That said, when I examine the judgment in S.A.No.65 of 2002, a learned Judge of this Court had extensively dealt with the various factual situations and has recorded as under:- “Against the decree and judgment dated 14/6/2001 in A.S.No.64 of 1994 of the District Court, Kollam, the plaintiff came up with this second appeal. A suit for the injunction simplicitor was filed before the Munsiff's Court, Karunagappally, with respect to one acre 12 cents of property, to direct the defendants not to trespass into the property, not to encroach upon any portion of the property or the structures therein and not to obstruct the Poojas and other ceremonies conducted in the temple situated in the property. 2. The plaintiff filed the suit being the Karanavan of the Marumakkathayam family Chengathottathil Tarawad, based on clause No.21 in the partition deed entered into the Tharaward as early as on 21.11.1101 M.E, corresponding to 07.06.1956, by which the elder member of the family was entrusted with the administration of the temple and properties left out in common for the beneficial enjoyment of the temple. By virtue of the said partition, the schedule No.9 was set apart in common for the beneficial enjoyment of the temple in which ten items of properties were ## **FAO (RO).No.3 OF 2019 12** included. The plaint schedule herein is the item No.9 in the 9th schedule. Clauses 21 and 22 of the said partition deed deal with the administration of the temple and also the possession and enjoyment of the property left out in common. It is stated in clause 21 of the said partition deed that the eldest member should administer the temple and possess the properties for and on behalf of the family (Tarawad). 3. It was submitted that the earlier suit was instituted by the then Karanavan of the family with respect to 67 cents of property comprised in Survey No.3705, claiming right over the property and there is a reference under Section 125(3) of Kerala Land Reforms Act., for deciding the question of tenancy raised by the defendant in that suit. Another application under Section 72(b) was also filed before the Land Tribunal by the concerned defendant. Both the proceedings under Section 125(3) and the application submitted under Section 72(b) were taken up simultaneously and separate orders were passed. But the suit was dismissed by the trial court which was taken up in first appeal before the District Court, then before this court and ultimately it was brought up to Apex Court. The Apex Court, by its order set aside the judgment of the second Appellate Court and remanded the matter back to this court for fresh disposal. It was also submitted that the matter was heard by another bench of this court and judgment reserved. 4. The learned counsel for the defendant submitted that, the subject matter of the said suit which constituted 67 cents, and the property involved in the present suit which is having one acre 12 cents are one and the same properties and as such the decision rendered or to be pronounced will have some impact on the matter in hand. But going by Ext.A1 partition deed it is clear that in the 9th schedule 10 items were included among them item No.8 is the property comprised in Survey No.3705, having an extend of 67 cents which **FAO (RO).No.3 OF 2019 13** is the subject matter of the other proceedings which went up to Apex Court. The item No.9 in the partition deed is having an extend of one acre 12 cents and it is situated in another village (Perinad Village). It appears to me that there is no merits in the argument that these two properties form part of the same property and the 67 cents of property which is the subject matter of the other litigation will form part of the subject matter of this suit. The amendment application which was filed by the plaintiff before the first appellate court in I.A No.4097/1995, for incorporating a prayer for declaration and recovery of possession by amending the suit was not considered by the learned District Judge while disposing of the appeal. The amendment application was not disposed of either on merits or otherwise. It was left out without answering the same and the appeal was disposed of without addressing the amendment application which is crucial. There is a fatal irregularity and illegality writ large in this case. The Appellate court has to consider the amendment application at first before disposing the appeal on its merits. Hence the decree and judgment of the first appellate court is liable to be set aside and I do so, for the purpose of enabling the first appellate court to consider the amendment application in I.A.NO.4097/1995 and to dispose of the same on merits. The first appellate court is directed to dispose of the appeal only after addressing I.A.No.4097/1995. In the result, the second appeal allowed, decree and judgment of the first appellate court is set aside. The matter is remanded back to the first appellate court for disposing of the application in I.A.No.4097/1995 at first, and then to dispose of the appeal on its merits untrammelled by any of the observations contained in this judgment. Parties are directed to suffer their respective cost of second appeal. Parties shall appear before the learned District Judge on 23/11/2018. The parties are at liberty to raise contentions in accordance with ## **FAO (RO).No.3 OF 2019 14** their whims and fancies to the permissible extent.” 15. It is in the afore manner that the learned Judge had allowed the Second Appeal, setting aside the judgment of the First Appellate Court and remanded it for disposal of the amendment application and the appeal. 16. When I go through the conclusions in the afore extracted judgment of this Court, which, admittedly, has now become final since no party has assailed the same, it is ineluctable that the amendments now sought for by the plaintiff are wholly necessary for the purpose of determining the real issues between the parties, particularly, when the contention of the defendant-that the plaint schedule property is part of the 67 cents which they had obtained through a purchase certificate-was found to be not tenable. Consequently, therefore, these issues will ## **FAO (RO).No.3 OF 2019 15** require to be evaluated by the Trial Court, before the suit can be finally decided. 17. Resultantly, I, cannot see any reason to find fault with the conclusions of the First Appellate Court in having allowed the application for amendment made by the plaintiffs, since, going by the conclusions in the judgment in S.A.No.65 of 2002 extracted above, these amendments are rendered absolutely necessary and unexpendable. 18. That finally leaves me with the remaining question whether this Court had, in the judgment in S.A.No.65 of 2002, directed the Lower Appellate Court to dispose of the appeal, without remanding it. I am afraid that even on a close look through the judgment in question, there is no such direction; and the only order therein being that the First Appellate **FAO (RO).No.3 OF 2019 16** Court will consider the I.A. for amendment on its merits and then dispose of the appeal in terms of law. Obviously, therefore, the First Appellate Court was justified in ordering the remand, particularly because, consequent to the amendments now allowed, a re-trial becomes necessary, since an opportunity for filing additional written statement has to be offered to the defendants and additional issues will also have to be framed under Order XIV Rule 1 of the CPC. I, therefore, repel these contentions of Shri.B.Krishna Mani as being not tenable. 19. After I dictated the afore portion of this judgment, Shri.B.Krishna Mani interjected to say that the various observations in the judgment of the Lower Appellate Court would virtually operate so as to trammel and bridle the trial and will render disposal of the suit by the Court below otiose. I have, therefore, ## **FAO (RO).No.3 OF 2019 17** carefully examined the judgment of the Lower Appellate Court, but what I see therefrom is that the observations made therein are only _prima facie_ or tentative, recorded for the sole purpose of disposing of the appeal. Therefore, since a full remand has been now ordered by the said Court, it is ineluctable that the Trial Court will have to consider the suit afresh, after framing additional issues, based on the pleadings of the parties; and consequently, I cannot find this contention-that the Trial Court will be hampered by the observations of the First Appellate Court-to be in any manner worthy of my favour. In any event of the matter, I feel it fully justified for this Court to clarificatorily order that the Trial Court will dispose of the suit untrammeled by any of the observations of the First Appellate Court in the judgment impugned **FAO (RO).No.3 OF 2019 18** in this appeal, so that the parties will obtain full recourse to all statutory processes, when the fresh trial is completed. In summation, this appeal will stand dismissed, however, without making any order as to costs, taking note of the rather peculiar circumstances involved. **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **MC/4.2.2020**