K. Thankachan v. Ambikakumari

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 10[TH] DAY OF MARCH 2022 / 19TH PHALGUNA, 1943 ``` ## **`OP(C) NO. 2401 OF 2021`** ## **`AGAINST THE ORDER IN IA 1/2021 IN OS 232/2013 OF MUNSIFF COURT, PUNALUR`** ## **`PETITIONER/DEFENDANT:`** ``` K. THANKACHAN AGED 72 YEARS S/O.LATE Y.KOCHUKUNJU, SIBU BHAVAN, NJARAKKAD, THALAVOOR P.O, KOLLAM DISTRICT 691 508 BY ADVS. V.PHILIP MATHEW GIBI.C.GEORGE ``` ## **`RESPONDENT/PLAINTIFF:`** ``` AMBIKAKUMARI D/O. SARASAMMA, RESIDING AT KARTHIKA, NJARAYAKADU MURI, THALAVOOR VILLAGE, PATHANAPURAM TALUK, THALAVOOR P.O, KOLLAM DISTRICT 691 508 BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) A.R.DILEEP P.J.JOE PAUL MANU SRINATH ``` ## **`THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.03.2022, THE`** ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 2401 OF 2021 ``` ``` 2 ``` ## **JUDGMENT** This Original Petition has been filed under Article 227 of the Constitution of India. 2. The defendant in O.S.232/2013 is aggrieved by order in I.A.1/2021 dated 03.12.2021 on the files of the Munsiff Court, Punalur. Plaintiff is the respondent. 3. Heard the learned counsel, Adv.V.Philip Mathews and Adv.A.R.Dileep appearing for the respondent. 4. The brief facts of the case is as follows: Originally the suit was dismissed by the trial court and later, the appellate court allowed the same. When appeal as RSA No.1066/2018 was considered by this Court, as per judgment dated 12.08.2021, this Court set aside the judgments and decrees of the courts below and thereafter, remanded the matter with direction to dispose of the same within a period of six months. This Court allowed the parties to adduce additional evidence and also this Court directed to frame additional issues. The relevant observation in the judgment as appears in the last paragraph is extracted hereunder. ``` OP(C) NO. 2401 OF 2021 ``` ``` 3 ``` “For the forgoing reasons, this second appeal is allowed. The impugned judgment and decree of the first appellate court are set aside and the suit is remitted to the trial court for fresh disposal. The trial court is directed to frame additional issues regarding limitation and validity of Ext.A2 agreement for re-conveyance and decide the suit after giving the parties an opportunity to adduce evidence. The trial court is directed to dispose of the suit finally within six months from the date of receipt of a copy of this judgment uninfluenced by the observations and findings contained in this judgment. There will be no order as to costs. Pending applications, if any, stand disposed of.” 5. The counsel for the petitioner argued that amendment, as sought for in the written statement, is necessary to put up the grievance of the defendant before the court below. Though the learned counsel was asked to justify compliance of proviso to Order VI Rule 17 of CPC, he failed in this regard. But he urged that generally reading the affidavit in support of this petition, compliance of proviso to Order VI Rule 17 could be gathered though it was not specifically averred in tune with the terms of the CPC. He submitted further that such technical compliance is not mandatory and the court may not insist for the same. He submitted further that copying the words of CPC is not mandatory. ``` OP(C) NO. 2401 OF 2021 ``` ``` 4 ``` 6. Therefore, the learned counsel submitted that the order impugned is illegal and the same is liable to be set aside with permission to the defendant to amend the written statement as sought for. 7. Per contra, the learned counsel for the petitioner would submit that, in this matter, when the matter was remanded back to the court below, the plaintiff submitted before the court below that the plaintiff had no further evidence. Accordingly, the trial has commenced and it was thereafter, this petition was filed seeking amendment of the written statement by incorporating more things running into two pages. According to the learned counsel for the petitioner, since the amendment was sought for after commencement of trial, in the given facts of the case, compliance of proviso to Order 6 Rule 17 is mandatory and non-compliance itself is a reason to dismiss the application. In this context, I have gone through the proviso to Order 6 Rule 17 CPC. 8. For clarity, I am inclined to extract Order 6 Rule 17 CPC as such. “ **17. Amendment of pleadings.-** The Court ``` OP(C) NO. 2401 OF 2021 ``` ``` 5 ``` 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.” 9. Going by the proviso, it is crystal clear 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. The learned counsel for the petitioner placed decision of this Court reported in **Salim P.M. v. Vasudevan Namboothiri and Others** (2021 (5) KLT 740). In the said decision, this Court categorically held that compliance of the proviso is mandatory in nature and therefore, non-compliance is a reason for dismissal of the petition. 10. Here, the learned counsel for the petitioner read ``` OP(C) NO. 2401 OF 2021 ``` ``` 6 ``` out the affidavit in support of as a whole and submitted that when reading the affidavit as a whole, compliance of the proviso could very well be gathered and therefore, the petition may not be dismissed technically. 11. I have perused the impugned order as well as the affidavit in support of the amendment petition and the amendments sought to be brought into, running into two pages. In fact, the defendant herein resisted the suit on the basis of a sale deed alleged to be executed by the plaintiff where the plaintiff could contend that the same is a sham document. The defendant filed written statement and resisted the contention stating that the document executed by the plaintiff in favour of the defendant is a pacca sale deed. Now the plaintiff wants to elaborate the circumstances under which the sale deed was executed and also the reason for showing less value instead of Rs.9,00,000/- (Rupees nine lakh only) actually being paid as sale consideration. Thus, it appears that these are all matters known to the defendant at the time of filing the written statement itself and no subsequent facts. Thus, compliance of the proviso is mandatory and non- ``` OP(C) NO. 2401 OF 2021 ``` ``` 7 ``` compliance is the reason for which the learned Munsiff dismissed the application. On reading the factual aspects involved within the limited power of supervisory jurisdiction, I could not find any perversity, arbitrary or illegality in the order impugned. Accordingly, this Original Petition stands dismissed. Registry shall forward a copy of this judgment to the court below concerned, within seven days, for information and compliance. **Sd/-** **A. BADHARUDEEN JUDGE** nkr ``` OP(C) NO. 2401 OF 2021 ``` ``` 8 ``` ## **`APPENDIX OF OP(C) 2401/2021`** ``` PETITIONER EXHIBITS Exhibit P1COPY OF THE PLAINT IN O.S NO. 232/2013 Exhibit P2COPY OF WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S NO. 232/2013 Exhibit P3COPY OF JUDGMENT DATED 12-08-2021 PASSED IN R.S.A NO. 1066/2018 Exhibit P4COPY OF I.A NO. 1/2021 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, PUNALUR Exhibit P5COPY OF ORDER DATED 03-12-2021 PASSED BY THE MUNSIFF COURT, PUNALUR IN I.A NO. 1/2021 IN O.S 232/2013 ```