Joseph Martin @ Joy v Mercy Simon and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944 ``` ## **`OP(C) NO. 2254 OF 2022`** ``` OS 34/2016 OF I ADDITIONAL SUB COURT,ERNAKULAM ``` ## **`PETITIONER/RESPONDENT/DEFENDANT:`** ``` JOSEPH MARTIN @ JOY AGED 64 YEARS S/O. MARTIN, THUNDATHIL HOUSE, KADAVANTHARA P.O., ELAMKULAM VILLAGE, KOCHI, ERNAKULAM DISTRICT. PIN - 682020 BY ADVS. S.RANJIT (K/250/1999) GOKUL DAS V.V.H. ABHILASH BHASKAR BINU JOHN J.ARUN ``` ## **`RESPONDENTS/PETITIONERS/PLAINTIFFS:`** ``` 1MERCY SIMON AGED 63 YEARS W/O. SIMON, KATTUMPPURATHU HOUSE, THEVARA P.O., THEVARA, ERNAKULAM DISTRICT, PIN - 682013 2USHA CRISTAPHER AGED 61 YEARS W/O. CHRISTAPHER, PARIYATH HOUSE, MARADU P.O., ERNAKULAM DISTRICT. PIN - 682304 3JESSY GEORGE W/O. LATE GEORGE, MANNAPARAMBIL HOUSE, MARADU P.O., ERNAKULAM DISTRICT. PIN - 682304 4CELIN APHREM AGED 55 YEARS W/O. APHREM, MANACKAL HOUSE, GOTHURUTHU, PARAVOOR, ERNAKULAM DISTRICT. PIN - 683516 ``` ``` OP(C) NO. 2254 OF 2022 2 ``` ``` 5MEERA JOY AGED 54 YEARS W/O. JOY, MOOZHITHADATHIL HOUSE, KALOOR P.O., ERNAKULAM DISTRICT. PIN - 682012 ``` ``` BY ADVS. P.M.JOSHI SIJI K.PAUL(K/817/2012) BONNY BABY(K/000580/2021) VISHNU PRASAD(K/000399/2022) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 2254 OF 2022 3 ``` **Dated this the 29[th] day of November, 2022** ## **JUDGMENT** Aggrieved and displeased with Ext.P8 order passed in I.A. No.1/2022 in O.S. No.34/2016 of the Court of the Subordinate Judge, Ernakulam, the defendant in the suit has filed the original petition. The respondents in the original petition are the plaintiffs in the suit. 2. The concise case of the petitioner in the original petition leading to Ext.P8 order, is: (i) The respondents have filed Ext.P1 suit against the petitioner for a decree of partition. (ii) The petitioner has resisted the suit through Ext.P2 written statement. (iii) The respondents have filed Ext.P3 replication in the suit. ## **`OP(C) NO. 2254 OF 2022 4`** (iv) The court below dismissed the suit by Ext.P4 judgment. (v) The respondents challenged Ext.P4 judgment before this Court in R.F.A. No.205/2019. By Ext.P5 judgment, this Court allowed the appeal by way of remand. (vi) Consequent to Ext.P5 judgment, the respondents filed I.A.No.1/2022 (Ext.P6) application seeking leave to amend the plaint. Ext.P6 application was resisted by the petitioner through Ext.P7 counter affidavit. (vii) The court below, by the impugned Ext.P8 order, allowed Ext.P6 application. (viii) The court below has not adverted to any of the contentions raised by the petitioner in Ext.P7 counter affidavit. - (ix) The relief sought to be incorporated by way - of amendment is hopelessly time barred. - (x) Ext.P8 order is manifestly wrong and ``` OP(C) NO. 2254 OF 2022 5 ``` unsustainable in law. Hence, the original petition. 3. Heard; Sri.S.Renjith, the learned counsel appearing for the petitioner and Sri.P.M.Joshi, the learned counsel appearing for the respondents. 4. The question is whether there is any illegality in Ext.P8 order. 5. The respondents have filed the suit for a decree of partition as early as on 08.02.2016. The suit is resisted by the petitioner through Ext.P2 written statement filed on 29.08.2016. 6. In Ext.P2 written statement, the petitioner has categorically pleaded that sale deed No.3880/2006 was executed by his father, in his favour. 7. In response to Ext.P2 written statement, the respondents have filed Ext.P3 replication dated 01.07.2017. 8. The court below, after analysing the pleadings and materials on record, by Ext.P4 judgment, dismissed the suit. ## **`OP(C) NO. 2254 OF 2022 6`** ## 9. Challenging Ext.P4 judgment, the respondents filed R.F.A No.205/2019 before this Court. This Court by Ext.P5 judgment allowed the appeal as follows:- “2. xxx xxxx xxxx As such, the dispute involved cannot be resolved with the available evidence on record and the non-production of the original of the sale deed, Ext.B1. Hence, the adjudication made by the trial court is liable to be set aside. I do so. The matter is remanded back to the trial court for fresh disposal. **The parties may be permitted to amend their plaint for incorporating substantial prayers, if any with the right of defendant to submit any additional written statement or pleading thereof** . The parties shall appear before the trial court on 15/06/2022. The appeal is allowed in part accordingly. No costs.” ## 10. Taking a cue from Ext.P5 judgment, the respondents filed Ext.P6 application, seeking leave to amend the plaint. 11. The petitioner resisted Ext.P6 application through Ext.P7 counter affidavit, inter alia, contending as follows:- ## **`OP(C) NO. 2254 OF 2022 7`** “That averments in the first paragraph are not correct hence denied. The petitioner should be put to strict proof the same. The averments in second paragraph of the affidavit are not fully correct and also confusing hence denied in its totality. **The Hon'ble High Court has not waved any period of limitation while allowing RFA 205/2019. The Hon'ble High Court has not granted any permission or right to the plaintiffs to incorporate any declaration by amending the plaint and the prayer which already stands barred by limitation. As on the date of filing this amendment petition, if the plaintiff files a suit for a decree of declaration for declaring document 3880/2006 as null and void and to set aside the same, then such a suit will be barred by limitation as per section 2(j) item 56 and 59 of the schedule. The plaintiffs had the knowledge of the above said instrument from 06-07-2006, hence they ought to have challenged it before 0507-2009. Even if taken as admitted by the plaintiffs that their knowledge was from the counter filed by me in OS 885/2015 on 07-082015, even under that condition a suit would be barred by limitation as on 06-08-2018. It is also settled position of law that any amendment of above said nature is not to be allowed after the period of limitation.** The intentions of the plaintiffs are with malafide, dishonest and for unlawful enrichment. The plaintiffs are not to be permitted to ## **`OP(C) NO. 2254 OF 2022 8`** carry out amendments, if such amendments are mala fide, worthless or dishonest. No amendment can be allowed if the potentiality of prejudice or injustice will be caused to me as the defendant. I will be deprived of a plea of limitation if this amendment is allowed.” 12. The court below, after reproducing the pleadings in Ext.P6 application and Ext.P7 counter affidavit, allowed Ext.P6 application, by the impugned Ext.P8 order, as follows:- “In the light of the judgment in RFA 2015/19, it is clear that the dispute involved cannot be resolved with the available evidence on record and due to the non production of original title deed. Ext.B1. There is also direction that parties may be permitted to amend their plaint for incorporating substantial prayers. By virtue of Order VI Rule 17 of CPC amendment can be allowed if it does not change the basic nature and character of the suit. It is also evident from the replication filed by petitioners plaintiffs that they had raised contention with respect to the genuineness of Ext.B1 sale deed. The contention was already raised to the effect that said sale deed is a fabricated one. **If the present prayer in this regard is not allowed, it would defeat the very purpose of the direction of the Hon'ble High Court in RFA 205/2019** . In the interest of justice, on perusing the records and in the light of the judgment in RFA 205/2019, the prayer can be ## **`OP(C) NO. 2254 OF 2022 9`** allowed. Point is found in favour of the petitioners/ plaintiffs. In the result, IA stands allowed. Carry out amendment within 3 (three) days.” 13. On an analysis of Ext.P8 order, it can be gathered that, even though the court below has referred to the rival contentions in Exts.P6 and P7, the court below has not applied its mind or adverted to the specific contention of the petitioner that the relief sought to be incorporated by way of the amendment is stale by the principles of limitation. Instead, the court below has allowed Ext.P6 application simply for the reason that this Court has in Ext.P5 judgment, permitted the parties to amend the pleadings, and if the same is not allowed, it would go against the spirit of Ext.P5 judgment. 14. Sri.S. Renjith, the learned counsel appearing for the petitioner placed strong reliance on the judgment of the Honourable Supreme Court in **Life** ``` OP(C) NO. 2254 OF 2022 10 ``` **Insurance Corporation of India v. Sanjeev Builders Private Limited and Another** [2022 KHC 6882], wherein the Supreme Court has exhaustively dealt with the manner in which an application for amendment is to be dealt with. He also placed emphasis on the judgment of this Court **Abraham v. Mathai and others** [2021 (1) KHC 441], wherein this Court has dealt with the issue of permitting the amendment of pleadings to incorporate a relief, which is said to be barred by limitation. According to him, notwithstanding the specific objection raised by the petitioner in paragraph 5 of Ext.P7 counter affidavit, the court below has not adverted to the said objection, instead, has in a laconic manner, allowed Ext.P6 application. 15. I totally agree and accept the submission made by the learned counsel appearing for the petitioner. ## **`OP(C) NO. 2254 OF 2022 11`** 16. On a consideration of Ext.P8 order, it is beyond any pale of doubt that, the court below has not applied its mind to Ext.P7 counter affidavit filed by the petitioner to Ext.P6 application and as to whether the amendment will take effect prospectively or from the date of the plaint. There is stoic silence on this crucial aspect in the impugned order, which would certainly cause severe prejudice to the petitioner, as he would stand to loose an indefeasible right of defence on the issue of limitation, with respect to the relief sought to be incorporated. 17. Without expressing anything more in the matter, I am of the firm view that the question is to be dealt with and decided by the court below afresh, after adverting to the contentions in Ext.P7 counter affidavit and the law on the point, which will do complete justice to both sides. Thus, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I am constrained to interfere ``` OP(C) NO. 2254 OF 2022 12 ``` with Ext.P8 order and set aside the same. In the result, the original petition is allowed as follows:- (i) Ext.P8 order is set aside. (ii) The court below is directed to re-consider Ext.P6 application, after adverting to Ext.P7 counter affidavit and the law laid down by the Honourable Supreme Court and this Court on the point, particularly as to whether the amendment should take effect prospectively or from the date of the plaint. (iii) The court below shall consider and dispose of Ext.P6 application, as observed above, in accordance with law, as expeditiously as possible. ## **Sd/-** ## **C.S.DIAS, JUDGE** rmm29/11/2022 ## **`OP(C) NO. 2254 OF 2022 13`** ## **`APPENDIX OF OP(C) 2254/2022`** ``` PETITIONER EXHIBITS ``` - `Exhibit-P1 TRUE COPY OF THE PLAINT IN O.S. NO. 34/2016 BEFORE THE SUBORDINATE JUDGE'S COURT, ERNAKULAM.` - `Exhibit-P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO. 34/2016 BEFORE THE SUBORDINATE JUDGE'S COURT, ERNAKULAM.` - `Exhibit-P3 TRUE COPY OF THE REPLICATION IN O.S. NO. 34/2016 BEFORE THE SUBORDINATE JUDGE'S COURT, ERNAKULAM.` - `Exhibit-P4 TRUE COPY OF THE JUDGMENT DATED 19.11.2018 IN O.S. NO. 34/2016 BEFORE THE SUBORDINATE JUDGE'S COURT, ERNAKULAM.` - `Exhibit-P5 TRUE COPY OF THE JUDGMENT DATED 31.05.2022 IN R.F.A. NO. 205/2019 BEFORE THIS HON'BLE COURT.` - `Exhibit-P6 TRUE COPY OF THE PETITION IN I.A. NO. 1/2022 IN O.S. NO. 34/2016 BEFORE THE SUBORDINATE JUDGE'S COURT, ERNAKULAM.` - `Exhibit-P7 TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A. NO. 1/2022 IN O.S. NO. 34/2016 BEFORE THE SUBORDINATE JUDGE'S COURT, ERNAKULAM.` - `Exhibit-P8 TRUE COPY OF THE ORDER DATED 20.08.2022 IN I.A. NO. 1/2022 IN O.S. NO. 34/2016 BEFORE THE SUBORDINATE JUDGE'S COURT, ERNAKULAM.` ``` RESPONDENTS’ EXHIBITS NIL ```