K. J. Sebastian and others v. JM Garden Apartment Owners Association and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932** **WP(C).No. 35976 of 2009(O)** **---------------------------------------** **[OS.NO.546/2007 OF II ADDL.MUNSIFF COURT, ERNAKULAM]** **....................** ## **PETITIONERS:** **---------------------** **1. K.J.SEBASTIAN, AGED 44, S/O.K.R.JOSEPH, FLAT.NO.35, J M GARDENS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **2. JAYASREE.S.PRABHU, W/O. SUNIL KUMAR.V.PRABHU, FLAT.NO.14, J M GARDENS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **3. K.K.GOPALAKRISHNAN NAIR, S/O. P.N.KRISHNAN UNNITHAN, FLAT.NO.59, J M GARDENS, PLLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **BY ADVS. SRI.G.SREEKUMAR (CHELUR), SMT.PREETHY KARUNAKARAN, SRI.K.RAVI (PARIYARATH).** **RESPONDENTS:** ## **------------------------** **1. THE J M GARDEN, APRTMENT OWNERS ASSOCIATION, J M GARDENS, PALLIKAVE TEMPLE ROAD, VADUTHALA, KOCHI-23, REP. BY ITS PRESIDENT V. RAJEEV.** **2. THE J M GARDENS APARTMENT OWNERS ASSOCIATION, JM GARDENS PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23, REP. BY ITS SECRETARY V VENUGOPALA B. MENON.** **3. THE J M GARDENS PARTMENT OWNERS ASSOCIATION, J M GARDENS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23, REP. BY ITS TREASURER, SUDHEESH.** ## **W.P.(C). NO.35976/2009-O:** **4. B. PRADAP CHANDRAN, S/O.B.C. KAIMAL, FLAT NO. 52, J M GARDEN APARTMENTS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **5. BIJU.B, S/O. BALACHANDRA PANICKER, FLAT.NO.32, J M GARDEN PARTMENTS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **6. GEEJI GEEVAN, D/O. GOPAKUMAR, FLAT NO.28, J M GARDEN APARTMENTS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **7. KANNAN VASAN, /O. VASAN, FLAT NO.7, J M GARDEN APARTMENTS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **8. KRISHNA PAI, S/O. SUBRAMANIA PAI, FLAT NO.20, J M GARDEN APARTMENTS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **9. S.S.RANA, S/O. SAHADEVAN, FLAT.NO.65, J M GARDEN PARTMENTS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **10. KUNJAPPAN, S/O. CHANDRASEKHARAN NAIR, FLAT.NO.57, J M GRDEN APARTMENTS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **11. BIJISH JOHN, S/O.V.G.JOHNY, FLAT NO.37, J M GARDEN APARTMENTS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **12. VIJAY M SHAH, S/O. MUNICHANDH SHAH, FLAT. NO. 12, J M GARDEN APARTMENTS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **13. P.T.LUWIS, S/O. P.N.THOMAS, FLAT.NO.56, J M GARDEN APARTMENTS, PALLIKAVU TEMPLE ROAD, VADUTHALA, KOCHI-23.** **R1 TO R3 BY ADVS. SRI.P.BINNY JOSEPH, SRI.T.RAJESH, SRI.N.NEELAKANDHAN NAMBOODIRI, SRI.P.S.NARAYANA RAJA, R4 TO R11 BY ADV. SRI.K.R.RANJITH.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2010, ALONG WITH W.P.(C). NO. 1031 OF 2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.35976/2009-O:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 546/07 ON THE FILE OF THE MUNSIFF COURT, ERNAKULAM DTD. 17/04/07.** **EXT.P.2; COPY OF THE APPLICATION I.A.NO.5824/09 IN O.S. NO. 546/07 ON THE FILE OF THE MUNSIFF COURT, ERNAKULAM DTD. 13/08/09.** **EXT.P.3: COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS 1 TO 3 DTD. 21/08/09.** **EXT.P.4: COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS 4 TO 11 DTD. 25/08/09.** ## **EXT.P.5: COPY OF THE COMMON JUDGMENT PASSED IN C M A NOS. 106 AND 107/07 DTD. 30/09/08 ON THE FILE OF THE 2ND ADDL. DISTRICT COURT, ERNAKULAM.** **EXT.P.6: COPY OF THE ORDER PASSED IN I.A. NO. 5824/09 IN O.S. NO. 546/07 DTD. 09/10/09 ON THE FILE OF THE 2ND ADDL. MUNSIFF COURT, ERNAKULAM.** ## **RESPONDENTS' EXHIBITS:** **EXT.R1.(A): COPY OF THE MINUTES DTD. 04/09/2005.** **EXT.R1.(B): COPY OF THE MINUTES DTD. 08/10/2006.** **EXT.R1.(C): COPY OF THE LETTER DTD. 10/04/2007.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **Prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). Nos. 35976 of 2009 & 1031 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of March, 2010. ## **JUDGMENT** In these two writ petitions, common issues came up for consideration and they are being disposed of by a common judgment. The facts and parties are referred to as available in W.P.(C) 35976 of 2009. 2. The petitioners in W.P.(C) 35976 of 2009 instituted O.S. 546 of 2007 before the Munsiff's Court, Ernakulam. The suit was one for permanent prohibitory injunction restraining the defendants from effecting any truss work in the apartment complex in the plaint schedule property and also to restrain the defendants from causing any disconnection of any of the amenities enjoyed by the plaintiffs including the water supply, electricity, security service, waste disposal etc. Copy of the plaint is produced as Ext. P1. On the same set of facts the other O.S. 553 of 2007 on the file of the Munsiff's Court, Ernakulam was instituted by another flat WPC. 35976/09 & 1031/10. 2 owner. According to the plaintiffs, they were informed by the defendants about the proposal to seek contribution for the purpose meeting the expenses of having the truss work completed. The plaintiffs have expressed their unwillingness because they have felt that it was unnecessary and it does not form part of the maintenance work. The defendants are said to have issued notice under Clause 21 of the bye laws threatening that the amenities will be stopped if the petitioners did not pay the contribution as demanded. It appears that an interlocutory application was filed by the petitioners in both the petitions seeking interim relief. They also sought to restrain the defendants from carrying on the truss work. In the meanwhile a letter was issued by the defendants informing that the work was completed. The plaintiffs sought for an amendment of the plaint incorporating the following prayers: _“After paragraph 5 add the following:_ WPC. 35976/09 & 1031/10. 3 _“5A. It is submitted that the basic decision which is communicated to the plaintiffs that the plaintiffs will be termed as defaulters, is the communication dated 10.4.2007 and the decision contained therein. The said decision is highly illegal. It is oppressive in nature. It is never authorised by either the statute or the law governing the field, or by any contract concerning the same. On the records as admitted by the defendants, on the relevant date namely on 10.4.2007, more than 50% of the members of the defendants 1 to 3, have neither paid the alleged contribution towards the truss work and many of them are even defaulters of the monthly maintenance charges. It is submitted on a perusal of the alleged documents which are stated to be the relevant documents of the association, it can be seen that unlike in the case of plaintiffs, no interest whatsoever is charged for about 20 persons even assuming that the term defaulters are justified as contended by the defendants 1 to 3. In other words, this is yet another at of gross illegality and discrimination in so far as the plaintiffs are mulcted with huge liability of the alleged principle_ WPC. 35976/09 & 1031/10. 4 _amount with unconscionable interest where as during the relevant period the other similarly placed members are charged with no interest at all in spite of their non payment. In spite of such fats, the defendants 1 to 3 have employed a process of pick and choose of the plaintiffs alone for perpetrating the illegal act of disconnecting the amenities. Therefore the aid decision which is communicated and dated 10.4.2007, is illegal, is not authorised by law or any statute, is palpably discriminatory in nature and is oppressive of the plaintiffs. Besides it infringes the civil right of the plaintiffs and his protected right as that of a coowner entitled to equality of rights. The said decision requires to be declared as illegal and hence unenforceable. Any consequential action taken is also illegal. It is submitted that based on the said decision, on 20.12.2008, the office bearers of defendants 1 to 3 have forcefully disconnected the bore-well water supply provided to the plaintiffs. Since the decision which culminated in such illegal act, itself is illegal, the_ WPC. 35976/09 & 1031/10. 5 _water supply requires to be restored. Hence a declaration and consequential injunction to that extend is sought.”_ _2. In the prayer portion delete the existing prayer A and substitute the following:_ _“Prayer A. To declare that the decision taken by the defendants 1 to 3 and communicated to the plaintiffs vide letter dated 10.4.2007 is illegal, unenforceable and therefore a nullity, in the interest of justice.”_ _3. “Prayer C. To pass a decree of mandatory injunction to direct the defendants 1 to 3 to restore the bore well supply to the plaintiffs, within such time as may be specified by this Hon'ble Court and in the event of they are not complying with the same, to permit the plaintiffs to have the said connection restored and to realize the expense from the defendants 1 to 3.”_ 3. The respondents resisted the amendment application. They pointed out that it was barred by limitation and that it was highly belated. It was their contention that truss work was initially agreed to by the petitioners and it was on that basis that it was undertaken. WPC. 35976/09 & 1031/10. 6 According to them, after having given consent and agreed to abide by the decision taken in the general body, the petitioners cannot be allowed to wriggle out of the same and say otherwise. They also pointed out that since trial of the suit had already commenced, the amendment cannot be allowed. 4. By order dated 9.10.2009, the trial court dismissed the application for amendment in both the suits holding that it is barred by limitation. It is the said order that is assailed in these writ petitions. 5. Learned counsel appearing for the petitioners pointed out that the court below was wrong in coming to the conclusion that the amendment sought for was barred by limitation. According to the learned counsel, the mere fact that a decision has been taken, even assuming with the consent of the petitioners, that does not furnish a cause of action for the suit. They had expressed their unwillingness to contribute. It was only when they were issued with notice WPC. 35976/09 & 1031/10. 7 and they were threatened that steps would be taken against them, a cause of action arises. If that be so, it could not be said that the amendment sought for is barred by limitation. It is emphasized that it is not the decision taken but it is the competence that gave rise to the present suit. 6. Learned counsel appearing for the respondents pointed out that along with the counter affidavit, the respondents have produced Ext.R1(a), which shows that the petitioners had taken part in the General Body, which considered the truss work and they had agreed for the same. They had also agreed to share the expenses that is likely to be incurred for the said work. It is also contended that the present attempt of the petitioners is to wriggle out of the liability. The other contention taken is that the amendment was sought for after trial had commenced and therefore it should not be allowed. Finally it is contended that if the amendment is allowed, that will change the nature of the suit. WPC. 35976/09 & 1031/10. 8 7. It has to be said that the court below has erred in law in disallowing the amendment application. There was no justification in coming the conclusion that the amendment sought for is barred by limitation. As rightly pointed out by the learned counsel for the petitioner, it is not the decision taken in the General Body in 2005 that gave rise to the present cause of action seeking amendment or even the filing of the suit. It was when they were served with Ext.A1 notice stating that they would have to face drastic consequences if they failed to pay the amount demanded towards the expenses for the truss work, that their cause of action actually arose. Initially the truss work had not even started and therefore they sought for injunction. When they made and application for injunction, that was not granted and in the meanwhile the construction had started during the pendency of the suit. The apprehension of the petitioners is that completion of the truss work during the pendency of the suit may be a ground 9 WPC. 35976/09 & 1031/10. for the respondents to say that the suit has become infructuous. Apprehending this contention they sought amendment of the suit incorporating the amendment already made mention of. By no stretch of imagination it could be said that the amendment sought for was barred by limitation. 8. At this juncture, learned counsel appearing for the respondents pointed out that it is not necessary that in all cases the amendment should relate back to the date of the plaint. Normally it is so. But the learned counsel is right in his submission. Normally it relates back to the date of plaint but if ordered, it can take effect from the date of filing of the petition. The issue as to whether the amendment sought for is barred by limitation may be considered at the time of trial of the suit. It is made clear that it will not relate back to the date of the plaint. How far this can help the defendant is a different matter especially in the light of the WPC. 35976/09 & 1031/10. 10 fact that the plaintiff sought amendment on the basis of the fact that during the pendency of the suit the defendants had completed the construction of the truss work. 9. The issue whether the petitioners are trying to wriggle out of the decision already taken is a matter to be considered in the suit. May be that they have taken part in the two general body meetings, one in which it was decided to effect truss work and the other in which the details of the same were given and there was a decision to share the expenses. But that had nothing to do with the amendment sought for by the plaintiffs. That is on the merits of the case. It is yet to be gone into. 10. The next contention taken is that since trial has commenced, the amendment ought not have been allowed and the learned counsel relied on the decision WPC. 35976/09 & 1031/10. 11 reported in **Vidyabai v. Padmalatha** (2009(1) KLT SN 14) and **Subramanian v. Aboobaker Koya** (2003 (3) KLT 819). Order VI Rule 17 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.”_ Normally the courts are shy and reluctant to allow the amendment after commencement of trial. In the decision reported in **Subramanian's case** it was held that normally after trial had commenced, amendment should not be entertained. So also the observation in **Vidyabai's case.** WPC. 35976/09 & 1031/10. 12 But as already noticed it is not an invariable rule that in all cases it should be so. If it is felt that it is necessary for the proper adjudication of the issues that arise for consideration, the amendment has to be allowed. It has already been held that if the court felt that allowing of the amendment will avoid multiplicity of suit, the courts would normally allow the amendment. Viewed from this angle the amendment sought for in this case has to be allowed in the light of the decision of the decisions referred to above. 11. Learned counsel for the respondents submits that the amendment should not be allowed, since it is a fresh cause of action and a separate suit should be filed. This court fails to see any substance in the above contention. The suit as originally instituted was one for permanent prohibitory injunction seeking seeking to restrain the defendants from carrying out its work, which the plaintiffs felt it was unnecessary and did not constitute as part of the maintenance work. True, they tried for WPC. 35976/09 & 1031/10. 13 obtaining an interim injunction. They failed in their attempt to do so. The result was that the defendants went on to complete the work. It was apprehending the contention on behalf of the defendants that since the work has been completed, the suit has become infructuous. The amendment is sought for against acts done during the pendency of the the suit and that cannot confer any better right on the defendants. There is nothing to show that by seeking amendment as sought for, the nature and character of the suit will be changed. 12. The result is that the court below was not justified in declining to grant the amendment sought for as it is felt that it is necessary to determine the real issues involved in the suit like the liability of the plaintiffs to pay contribution, right of the defendants to effect the construction etc. WPC. 35976/09 & 1031/10. 14 In the result, these writ petitions are allowed and the impugned order is set aside and the plaintiffs are allowed to carry out the amendment. They shall file the amended plaint. The defendants are at liberty to file additional written statement raising all contentions against the amendment of the plaint. **P. BHAVADASAN, JUDGE** sb.