Jameela P.K. v. P.Y.S.LIBRARY, Parappur, Thirurangadi Taluk, Parappur P.O., KottaKKal, Malappuram, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 7[TH] DAY OF JANUARY 2022 / 17TH POUSHA, 1943** **OP(C) NO. 1817 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OS 87/2016 OF MUNSIFF COURT** **,PARAPPANANGADI** ## **PETITIONER/S:** JAMEELA P.K. AGED 45 YEARS W/O.ABDUL ASEES KEERANTHODIKA, KODIYATHUR, KOZHIKODE TALUK, KODIYATHUR P.O., MUKKAM, KOZHIKODE-673602. BY ADVS. VINOD RAVINDRANATH MEENA.A. K.C.KIRAN M.R.MINI M.DEVESH ASHWIN SATHYANATH ANISH ANTONY ANATHAZHATH THAREEQ ANVER K. T.KRISHNANUNNI (SR.) 1 ABDUL GAFOOR P.K. AGED 47 YEARS S/O.PULIKKALAKATHU KUNHIKOYA, P.K.K.HOUSE, KALLITHODI, FAROKE, KOZHIKODE TALUK, FAROKE, NELLUR P.O., KOZHIKODE-673631. 2 ABDUL RASHEED, AGED 42 YEARS S/O.PULIKKALAKATHU KUNHIKOYA, P.K.K.HOUSE, KALLITHODI, FAROKE, KOZHIKODE TALUK, FAROKE, NELLUR P.O., KOZHIKODE-673631. 3 HAFSA P.K., AGED 64 YEARS W/O.PULIKKALAKATHU KUNHIKOYA, P.K.K.HOUSE, KALLITHODI, FAROKE, KOZHIKODE TALUK, FAROKE, NELLUR P.O., KOZHIKODE-673631. 4 SAINABA, AGED 38 YEARS W/O.PULIKKALAKATHU KUNHIKOYA, CHOLAKUND, NEAY ## **RESPONDENT/S:** O.P.(C) No.1817 of 2020 -2- P.Y.S.LIBRARY, PARAPPUR, THIRURANGADI TALUK, PARAPPUR P.O., KOTTAKKAL, MALAPPURAM-676503. 5 SINAN, AGED 12 YEARS S/O.PULIKKALAKATHU KUNHIKOYA, CHOLAKUND, NEAY P.Y.S.LIBRARY, PARAPPUR, THIRURANGADI TALUK, PARAPPUR P.O., KOTTAKKAL, MALAPPURAM-676503, REPRESENTED BY HIS LEGAL GUARDIAN SAINABA, THE 4TH RESPONDENT. 6 RAFVAN, AGED 10 YEARS S/O.PULIKKALAKATHU KUNHIKOYA, CHOLAKUND, NEAY P.Y.S.LIBRARY, PARAPPUR, THIRURANGADI TALUK, PARAPPUR P.O., KOTTAKKAL, MALAPPURAM-676503, REPRESENTED BY HIS LEGAL GUARDIAN SAINABA, THE 4TH RESPONDENT. 7 FARHAN, AGED 8 YEARS S/O.PULIKKALAKATHU KUNHIKOYA, CHOLAKUND, NEAY P.Y.S.LIBRARY, PARAPPUR, THIRURANGADI TALUK, PARAPPUR P.O., KOTTAKKAL, MALAPPURAM-676503, REPRESENTED BY HIS LEGAL GUARDIAN SAINABA, THE 4TH RESPONDENT. BY ADVS. SRI.K.K.SAIDALAVI SRI.K.K.NASRUL HAQUE **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.10.2021, THE COURT ON 07.01.2022 DELIVERED THE FOLLOWING:** O.P.(C) No.1817 of 2020 -3- ## **JUDGMENT** Dated this the 7[th] day of January, 2022 The petitioner is the plaintiff in O.S.No.87 of 2016 on the files of the Munsiff's Court, Parappanangadi. The suit is filed for partition of the properties belonging to the deceased pulikkalakath Kunhikoya, father of petitioner and defendants/respondents 1, 2 5, 6 and 7 and husband of defendants/respondents 3 and 4. Defendants 1 to 3 supported the plaintiff, while defendants 4 to 7 opposed the prayer for partition of item Nos.1 and 2 in plaint B schedule, contending that, Kunhikoya had sold those properties to the fourth respondent as per Sale Deed No.2760 of 2015 of the Parappanangadi SRO. Faced with such a contention, petitioner moved Ext.P3 application for amending the plaint by incorporating a prayer to declare the sale ## O.P.(C) No.1817 of 2020 -4- deed as null and void. The application was later dismissed as not pressed, purportedly for the reason that the petitioner was not able to cause production of the original of the sale deed. Thereafter, petitioner filed Ext.P5 application for amendment to incorporate the prayer for setting aside the sale deed, alleging that the sale deed was got executed when Kunhikoya was suffering from significant cognitive decline, which had impaired his consciousness. It is further alleged that Kunhikoya was admitted in the Department of Neurological Science at Aster Mims, Calicut on 03.12.2015, within one month of execution of the sale deed. 2. By Ext.P7 order, trial court dismissed the amendment application after finding the proposed amendment to be necessary for determining the real question in controversy between the parties. The dismissal is on the ground that the proposed relief of setting aside ## O.P.(C) No.1817 of 2020 -5- the document is barred by limitation. For arriving at such finding, the court below referred to the first application for amendment (I.A.No.1797 of 2017), wherein the plaintiff had stated that she came to know about the document from the written statement filed by the defendants on 06.06.2016. It was therefore held that the application for amendment dated 05.10.2020, was filed beyond the period of three years. 3. Adv.T.Krishnannuni, learned Senior Counsel appearing for the petitioner contended that, having found the amendment to be necessary for deciding the real question in controversy, the trial court had committed a gross illegality by dismissing the application. It is contended that, limitation being a mixed question of fact and law, the trial court should not have predecided that question, by rejecting the amendment application. Reliance is placed on the decision O.P.(C) No.1817 of 2020 -6- in _**Ragu Thilak D.John v S.Rayappan and others**_ _**[(2001) 2 SCC 472]**_ to contend that, when plea of limitation is disputed, that should be made a subject matter of the issue after allowing the amendment prayed for. Reliance is also placed on the decision in _**Sasidharan v. Sudarsanan and others [MANU/KE/2843/2020]**_ , wherein it is held that, if the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment can be allowed even after expiry of the statutory period of limitation. 4. Adv.K.K.Saidalavi, learned Counsel for respondents 4 to 7 supported the impugned order by contending that the earlier application for amendment filed by the petitioner having been dismissed, the second application for the same purpose is not maintainable. Further, even going ## O.P.(C) No.1817 of 2020 -7- by the averments in the application, the relief sought to be incorporated is barred by limitation. It is argued that an amendment should be declined if a fresh suit on the amended claim would be barred by limitation on the date of application. 5. The trial court having found that the proposed amendment is essential for determining the real question in controversy, the challenge against the impugned order is confined to the question whether the application for amendment could have been dismissed on the ground of limitation. As held by the Apex Court in a series of decisions, while considering applications for amendment, courts should not adopt a hyper technical approach. Technicalities of law should not be permitted to hamper the courts in the administration justice between the parties. In _**Ragu Thilak**_ (supra), it was held that when the O.P.(C) No.1817 of 2020 -8- plea of limitation is disputed, that could be made a subject of the issue after allowing the amendment prayed for. In _**South Kongan**_ _**Distilleries and another v Prabhakar Gajanan Naik and others [(2008) 14 SCC 632**_ **]** the Honourable Supreme Court has succinctly laid down the manner in which courts should deal with the prayer for amendment. The contextually relevant portion of the judgment is extracted hereunder; _“11. Before we deal with the orders of the courts below, as to whether the application for amendment of the written statement and the counterclaim was rightly rejected or not, let us consider the laws on the question of allowing or rejecting a prayer for amendment of the pleadings when the plea of limitation was taken up by one of the parties in the suit. It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really subserve the ultimate cause of justice and avoid further litigation._ ## O.P.(C) No.1817 of 2020 -9- The legal position being such, the application for amendment could not have been dismissed on the ground of limitation. 6. Now to the contention of the learned Counsel for the respondent that an earlier application for amendment having been dismissed, the second application is not maintainable. In this regard, it is pertinent to note that the prayer sought to be incorporated in the first application was to declare the sale deed as null and void, while in the second application, the prayer is for incorporating the relief of setting aside the document. So far as there is no bar against filing applications for amendment seeking different reliefs, the challenge against the maintainability of the second application fails. In the result, the original petition is allowed. Ext.P7 order is set aside. I.A.No.2 of 2020 is allowed. The petitioner shall carry out the amendment within two weeks of receipt of a O.P.(C) No.1817 of 2020 -10- copy of this judgment and thereupon, the defendants shall be afforded an opportunity to file additional written statement. Once the pleadings are completed the trial court shall take earnest efforts to dispose the suit expeditiously. Sd/- **V.G.ARUN JUDGE** Scl/ O.P.(C) No.1817 of 2020 -11- ## **APPENDIX OF OP(C) 1817/2020** ## PETITIONER EXHIBITS |EXHIBIT P1|THE TRUE COPY OF THE PLAINT IN| |---|---| ||O.S.NO.87/2016 PENDING BEFORE THE| ||MUNSIFF'S COURT, PARAPPANANGADI.| |EXHIBIT P2|THE TRUE COPY OF THE WRITTEN STATEMENT| ||DATED 6.6.2016 FILED BY THE DEFENDANTS| ||NOS.4 TO 7 IN O.S.NO.87/2016 BEFORE| ||THE MUNSIFF'S COURT, PARAPPANANGADI.| |EXHIBIT P3|THE TRUE COPY OF THE I.A.NO.1797/2017| ||DATED 4.11.2017 IN O.S.NO.87/2016| ||BEFORE THE MUNSIFF'S COURT,| ||PARAPPANANGADI.| |EXHIBIT P4|THE TRUE COPY OF THE STATEMENT DATED| ||8.10.2020 OF THE SECRETARY,| ||VALLIKKUNNU SERVICE CO-OP. BANK.| |EXHIBIT P5|THE TRUE COPY OF I.A.NO.2/2020 DATED| ||5.10.2020 IN O.S.NO.87/2016 OF THE| ||MUNSIFF'S COURT, PARAPPANANGADI.| |EXHIBIT P6|THE TRUE COPY OF THE REPORT OF DR.| ||SAIFUDHEEN, DEPARTMENT OF NEUROLOGICAL| ||SCIENCES, ASTER MIMS, CALICUT.| |EXHIBIT P7|THE TRUE COPY OF THE ORDER DATED| ||10.11.2020 IN I.A.NO.2/2020 IN| ||O.S.NO.87/2016 ON THE FILE OF THE| ||MUNSIFF'S COURT, PARAPPANANGADI.|