K. Prabhakaran and Others v. G. Nalinkshan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932** **WP(C).NO. 22769 OF 2010(O)** **------------------------------------------** **OS.351/1985 OF MUNSIFF COURT, KOTTARAKKARA** **....................** ## **PETITIONER(S):** **-----------------------** **1. K.PRABHAKARAN, S/O.LATE KUNJU PILLAI, HOUSE NO.8, VYASA STREET, DEVIKUMARI AMMAN NAGAR P.O., PALLIKKA RANI, CHENNAI-601 302.** **2. K.LATHA ALIAS LATHA, D/O.LATE KUNJU PILLAI, CHANKUR HOUSE, AYANIVALI KULANGARA SOUTH, P.O.KARUNAGAPPALLY, KOLLAM.** **3. K.NALINI, D/O.LATE KUNJU PILLAI, THATTOTTU PUTHEN VEEDU, KAMUKUNCHERRY VILLAGE PO, KARYARA, PUNALUR, KOLLAM DISTRICT.** **4. K.SASIDHARAN, S/O.LATE KUNJU PILLAI, THUNDUVILA PUTHEN VEEDU, KALAKOM VILLAGE, AMBALAKKARA P.O., KOTTARAKKARA.** **5. K.LEELA, D/O.LATE KUNJU PILLAI, CHANKUR HOUSE, AYANIVALI KULANGARA SOUTH P.O., KARUNAGAPPALLY, KOLLAM.** **6. K.SARALA, D/O.LATE KUNJU PILLAI, PLAVIALA PUTHEN VEEDU, ERICHACKKAL MURI PO, KARAMALLOOR, PATHANAMTHITTA.** **7. K.J.LALJI, LATE KUNJU PILLAI, THENGUMVILA VEEDU, AMBALAKKARA P.O., KOTTARAKARA, KOLLAM DISTRICT.** **8. K.J.SANTHOSHJI, S/O.LATE KUNJU PILLAI, DO. DO.** **9. SANTHAKUMARI.K.J, D/O.LATE KUNJU PILLAI, DO. DO.** **BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN** ## **RESPONDENT(S):** ## **---------------------------** **1. G.NALINAKSHAN, S/O.GOVINDAN, Q.R.NO.D.32, D.NEAR I.O.W. WORKSHOP, CENTRAL RAILWAY, JABALPUR-482 007, MADHYA PRADESH.** **2. ARAVINDAKSHAN, S/O.LATE U.KUTTY & GOVINDAN, GOVIND VILLA VEEDU, AMBALAKKARA MURI, OOMMANNOOR VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT-691 506.** **3. G.SURENDRAN, S/O.LATE U.KUTTY & GOVINDAN, DO. DO.-691 506.** **ADV. SRI.K.RAMACHANDRAN FOR R2-3 SRI.S.SREEDEV FOR R2-3 SRI.K.RAMACHANDRAN FOR R1 SRI.S.SREEDEV FOR R1** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX ---------------** **PETITIONER'S EXHIBITS: ---------------------------------** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.351 OF 1985 OF THE MUNSIFF COURT, KOTTARAKKARA.** **EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO.351 OF 1985** **EXHIBIT P3 TRUE COPY OF I.A. NO.3303 OF 2009 IN O.S. NO.351 OF 1985 EXHIBIT P4 TRUE COPY OF OBJECTIONS FILED TO I.A. NO.3303 OF 2009 IN O.S. NO.351 OF 1985.** **EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A. NO.3303 OF 2009 IN O.S. NO.351 OF 1985. EXHIBIT P6 TRUE COPY OF THE ORDER IN CRP NO.604 OF 1922.** **RESPONDENT'S EXHIBITS: ----------------------------------NIL** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) 22769 of 2010 ==================================== Dated this the 03[rd] day of December, 2010** ## **J U D G M E N T** Much has been said about the power of court to allow parties before it to amend their pleadings now of course to the restriction imposed by the proviso to Rule 17 of Order VI of the Code of Civil Procedure (for short, “the Code”) brought in by amendment Act 22 of 2002. But the question urged for a decision in this petition is under what circumstance such amendment is permissible? 2. Short facts necessary for a decision of the question are: Deceased original plaintiff, the predecessor-in-interest of petitioners was granted a lease over 2.49 acres as per a registered lease deed dated 17.12.1120 M.E. stipulating the period of lease as one year. Deceased original plaintiff claimed that on the expiry of the said period of one year, the lease was extended further and he continued to be in possession and enjoyment of the property. The present suit concerned 69 cents out of the said 2.49 acres. Deceased original plaintiff prayed for a declaration of his possession over the said property and consequential reliefs against **W.P(C) No.22769 of 2010** -: 2 :- deceased defendant No.1 and respondent No.1, her son. Deceased defendant No.1 and respondent No.1 admitted the registered lease deed dated 17.12.1120 but claimed that the lease was only for one year and on the expiry of the said period, it was extended for a further period of one year. While so, there was a partition in the family as per document No.4287 of 1122 and with the deceased original plaintiff also as a party to the said document the suit property was allowed to the share of deceased defendant No.1 with a direction that on the expiry of the period of lease (extended by one year) deceased defendant No.1 will get possession of the property. Accordingly on the expiry of the extended period of one year deceased defendant No.1 got possession of the suit property and she has been in possession and enjoyment of the same. In the meantime the original plaintiff died and petitioners were impleaded as additional plaintiffs as his legal heirs. Defendant No.1 also died and her other legal heirs were impleaded as respondent Nos.2 and 3. Petitioners filed Ext.P3, application for amendment of the plaint to incorporate paragraph 16(a) and (b) and consequently to incorporate additional reliefs. The purport of the amendment is to contend that deceased original plaintiff continued to be the lessee in **W.P(C) No.22769 of 2010** ## -: 3 :- possession of the suit property notwithstanding the recitals in the partition deed referred to above and that at any rate, deceased original plaintiff and following him petitioners are entitled to get value of improvements effected in the property. That application was resisted by respondents contending that on the expiry of the extended period of one year as above stated, original deceased plaintiff surrendered possession of the suit property in favour of deceased defendant No.1 who, from then onwards has been in possession and enjoyment of the property and after her respondents are in possession and enjoyment of the said property. They also contended that the proposed amendment is not necessary for deciding the real controversy involved in the suit. Learned Munsiff though not by a detailed order held that claim of tenancy has admittedly been rejected in a separate proceeding (which I will be adverting to later) and hence there is no scope for amendment. The application was dismissed. Exhibit P5, order dated June 4, 2010 on I.A. No.3303 of 2009 in O.S. No.351 of 1985 of the court of learned Munsiff, Kottarakkara is under challenge in this petition. Learned counsel for petitioners contended that at the stage of considering the application for amendment, learned Munsiff was not required to go into the ## **W.P(C) No.22769 of 2010** ## -: 4 :- merit of the claim made and that at any rate even if it is assumed that paragraph 16(a) sought to be incorporated by amendment could not be permitted, petitioners were entitled to get the plaint amended incorporating paragraph 16(b) as per I.A. No.3303 of 2009. Learned counsel has placed reliance on the order dated 10.04.1992 of this court in C.R.P. No.604 of 1992 to contend that the deceased original plaintiff continued to be in possession and enjoyment of the property notwithstanding the recitals in partition deed No.4287 of 1122 M.E. Learned counsel for respondents contends that though the court has power to allow amendment of pleadings at any stage of the proceeding subject to the restriction imposed by the proviso to Rule 17 of Order VI of the Code, any such amendment could be allowed only if it is necessary for determination of “the real question in controversy between the parties”. 3. It is relevant to refer to Rue 17 of Order VI of the Code. It states that 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 ## **W.P(C) No.22769 of 2010** -: 5 :- “all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties”. 4. The word ‘real’ has been defined in the Concise Oxford Dictionary as meaning “actually existing as a thing or occurring in fact”, “genuine; rightly so called; not artificial or merely apparent”. Hence the controversy between the parties to be real, must be actually existing as a thing or occurring in fact, genuine, not artificial or merely apparent. In other words there must be a genuine controversy existing between the parties which is required to be settled and the scope of amendment is limited to that extent. This test of “real controversy” has been considered by P.B. Mukharji, J in **Nrisingh Prosad v. Steel Products Ltd.** (AIR 1953 Calcutta 15). Learned Judge observed in paragraph 11, “....An immaterial and useless amendment should not be permitted by the Court. Nor does the Court allow amendment by introduction in the written statement of a stale and untenable set off as ## **W.P(C) No.22769 of 2010** ## -: 6 :- attempted in this application. These conclusions follow naturally from the “real controversy” rule in O.6 R.17 of the Code and no authority is needed in support thereof. But if any authorities are needed, they are collected at P.481 of the Annual Practice (1944 Edn.)”. In Annual Practice (1940 Edn.) at page 463 it is stated, “The court will always look at materiality of the proposed amendment (Wood v. Earl of Durham – 21 Q.B.D. 501). An inconsistent or useless amendment will not be allowed (Sinclair v. James - ([1894] 3 Ch. P. 557).” In the decision referred to above Mukharji, J has further observed (at page 17): “Bowen L. J.'s famous dictum in Cropper v. Smith, ([1894] 26 Ch.D. 700 at P.711 “there is one panacca which heals every sore in litigation and that ## **W.P(C) No.22769 of 2010** ## -: 7 :- is costs” has all the lure of a dogma and therefore carries the usual defect of an ever emphasised statement. It has been not a little responsible for the prevailing casual treatment by Courts of applications for amendment under the false comfort of costs being the universal remedy. The primary duty of a Court in deciding an application for amendment is not discharged by laying unction to its conscience with the thought that the order will not prejudice any party. The court has the more positive duty to decide whether the proposed amendment is necessary to determine the real controversy between the parties. Nor is the primary consideration in such an application, to award costs against the amending party. The Courts do not exist for so commercial a purpose as to be mere institutions for dispensing costs without deciding the merits. They exist primarily for the justice of determining the genuine and real disputes between the parties and incidentally for awarding costs. The “real controversy” test is the basic test which governs the Courts' unchartered **W.P(C) No.22769 of 2010** ## -: 8 :- powers of amendment of pleadings. No amendment in my judgment should be allowed when the amendment does not satisfy this cardinal test.” The power to amend pleadings thus depends on the “real controversy test” being satisfied. No amendment should be allowed if it does not satisfy that test. The Supreme Court in **P.H. Patil v. K.S. Patil** (AIR 1957 SC 363) and **Revajeetu** ## - **Builders & Developers v. Narayanaswamy & sons** [2009] 10 SCC 84) has held that amendment should be necessary for determination of the real question in controversy. Guided by the above principles I shall consider whether the real controversy test is satisfied in this case so far as the amendment is concerned. 5. I referred to the contentions raised by the original plaintiff in Ext.P1, plaint that pursuant to the registered lease deed dated 17.12.1120 he continued to be the lessee in possession of the suit property notwithstanding the recitals in partition deed No.4287 of 1122 dated 20.10.1122 and the defence set up by deceased defendant No.1 and respondent No.1 that the lease as per the registered lease deed dated 17.12.1120 ## **W.P(C) No.22769 of 2010** ## -: 9 :- was only for a period of one year (which period must have expired by 16.12.1121) and there was extension of the lease for a further period of one year (which should have expired by 16.12.1122). It is while so, that partition deed No.4287 of 1122 M.E dated 20.10.1122 was executed. The relevant recitals in the partition deed, it is not disputed before me, so far as the suit property in the possession of lessee (deceased original plaintiff) is that on the expiry of the lease deceased defendant No.1 is to get possession of the said property. Deceased defendant No.1 and respondent No.1 contended that on the expiry of the extended period of lease referred to above, deceased original plaintiff surrendered possession of the property to deceased defendant No.1 to whom that property was allotted as per document No.4287 of 1122 and since then onwards deceased defendant No.1 has been in possession and enjoyment of the property. 6. Deceased defendant No.1 filed O.S. No.161 of 1985 against deceased original plaintiff and others in the court of learned Munsiff, Kottarakkara claiming that on the expiry of the extended period of lease as referred to above deceased original plaintiff surrendered possession of the suit property and since then onwards deceased defendant No.1 has been in possession ## **W.P(C) No.22769 of 2010** ## -: 10 :- and enjoyment of the property. She prayed for a decree for prohibitory injunction on the apprehension that original deceased plaintiff and others might trespass into the property and disturb her possession. Though she was not successful in the trial court, she got a decree in her favour in the appellate court (vide judgment in A.S. No.47 of 1987 dated 23.08.1995). Appellate court while reversing finding of the trial court held that deceased defendant No.1 got possession of the suit property on the expiry of the extended period of lease referred to above by the deceased original plaintiff surrendering possession. Appellate court also found that recitals in partition deed No.4287 of 1122 is binding on the deceased original plaintiff since he is a party to the said document. Appellate court came to the conclusion that deceased defendant No.1 was in possession and enjoyment of the property. Accordingly she was granted a decree for prohibitory injunction. An unrelenting deceased original plaintiff took up the matter in S.A. No.608 of 1995 before this Court. This court observed that the contention of deceased original plaintiff that he continued to be the lessee of the suit property even during that time cannot be accepted. This Court observed that if that were the situation it was only reasonable to ## **W.P(C) No.22769 of 2010** ## -: 11 :- think that deceased original plaintiff would have applied for and obtained assignment of landlord's right in his favour which did not happen for several years. This Court was not inclined to accept the version of deceased original plaintiff as to the continuance of leasehold right over the suit property, not to say about the claim of possession and dismissed the Second Appeal. Though deceased original plaintiff tried his luck by moving the Supreme Court with a Special Leave Petition, that also failed. 7. Now reliance is placed by learned counsel for petitioners on the order dated 10.04.1992 in C.R.P. No.604 of 1992 (Ext.P6) to contend that deceased original plaintiff and after him, petitioners continued to be in possession and enjoyment of the property. No doubt, C.R.P. was disposed of by this Court on a finding that deceased original plaintiff was in possession of the suit property. But it is not disputed that deceased defendant No.1 or any of the respondents were not parties to the said proceeding and that order arose from an interlocutory order in a suit filed by the deceased original plaintiff against some other persons claiming to be in possession of the property. I must also bear in mind that this Court while deciding the CRP was not finally disposing of the suit. It was a revision arising under Sec.115 of ## **W.P(C) No.22769 of 2010** ## -: 12 :- the Code from an order of the temporary injunction. True, under Sec.13 of the Evidence Act even judgments or orders between non-parties could be taken to account to prove judicial recognition of a disputed fact. But in the present case after a fullfledged trial first appellate court in A.S. No.47 of 1987 and this Court in S.A. No.608 of 1995 with all the contestants in the present proceedings on record came to the conclusion that claim of deceased original plaintiff that he is a lessee in possession of the suit property cannot be accepted. In that view of the matter, petitioners cannot take shelter under Ext.P6, order in C.R.P. No.604 of 1992. It is also relevant to note that it is after Ext.P6, order dated 10.04.1992 that the first appellate court and this Court disposed of A.S. No.47 of 1987 and S.A. No.608 of 1995, respectively. If that be so parties hereto and their predecessorin-interest are bound by the final decision in A.S. No.47 of 1987 and S.A. No.608 of 1995 which meant that question of tenancy claimed by the deceased original plaintiff no more exists and it cannot be a matter of real controversy between the parties. 8. It is alternatively contended by learned counsel for petitioners that assuming that paragraph 16(a) cannot be incorporated by amendment for the said reason, paragraph 16 ## **W.P(C) No.22769 of 2010** ## -: 13 :- (b) where petitioners have claimed value of improvements could be incorporated in the plaint. I am afraid, I cannot not give my assent to that argument as well. The reason is that the case originally filed is only a simple suit for injunction where the court is concerned only with the question of possession. The issue concerned in the present case is only whether on the date of suit deceased original plaintiff was in possession of the property. In such a situation the question whether deceased original plaintiff and after him, petitioners are alternatively entitled to value of improvements does not arise for a decision. I am persuaded to think that petitioners have to fail on the test of the real controversy rule referred to above and which forms the crux of the matter when a request for amendment is made under Rule 17 of Order VI of the Code. I therefore hold that question whether deceased original plaintiff was a tenant of the suit property and is entitled to value of improvements is not a controversy which really arises between the parties hereto and which is required to be adjudicated in this suit for injunction. Though not for so many reasons learned Munsiff has observed that in the light of the concluded findings in A.S.No.47 of 1987 as confirmed by this Court in S.A. No.608 of 1995 request for ## **W.P(C) No.22769 of 2010** -: 14 :- amendment cannot be allowed. I do not find reason to interfere with that finding. Petition fails. It is dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv