Kalpana and Raj Kumar v. Premkumar and Sub Registrar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 7TH DAY OF JULY 2014/16TH ASHADHA, 1936** ## **FAO (RO).No. 100 of 2013 ()** **---------------------------AGAINST THE ORDER/JUDGMENT IN AS 12/2011 of DISTRICT COURT,THODUPUZHA** **AGAINST THE ORDER/JUDGMENT IN OS 153/2008 of SUB COURT,KATTAPPANA** **APPELLANT(S)/RESPSONDENT 1& 2/DEFENDANTS 1 AND 2.:** **--------------------------------------------------------------------------------------------** ## **1. KALPANA** **W/O.RAJKUMAR, NO.18, MATHURAIVEERAN NORTH STREET BODINAIKANNUR TALUK, THENI DISTRICT, TAMIL NADU STATE.** ## **2. RAJ KUMAR.R** **S/O.LATE RAMASWAMI, NO.18, MATHURAIVEERAN NORTH STREET BODINAIKANNUR TALUK, THENI DISTRICT, TAMIL NADU STATE.** **BY ADVS.SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.ARUN THOMAS** ## **RESPONDENT(S)/APPELLANT/3RD RESPONDENT/PLAINTIFF AND 3RD DEFENDANT:** **--------------------------------------------------------------------------------------------------------------------------** ## **1. PREMKUMAR** **S/O.LATE RAMASWAMY, NO.18, MATHURAIVEERAN NORTH STREET BODINAIKANNUR TALUK, THENI DISTRICT, TAMIL NADU STATE-900971.** ## **2. SUB REGISTRAR** **RAJAKUMARI, UDUMBANCHOLA, IDUKKI KERALA-686601.** **R1 BY ADV. SRI.N.SUBRAMANIAM R1 BY ADV. SRI.M.S.NARAYANAN R1 BY ADV. SRI.P.T.GIRIJAN R1 BY ADV. SMT.USHA NARAYANAN** **THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 07-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **[CR]** ## **B.KEMAL PASHA, J.** ................................................................ F.A.O.(RO) No. 100 of 2013 ............................................................... Dated this the 7[th] day of July, 2014 ## **J U D G M E N T** Can an application, seeking an amendment of the plaint, casually filed before the appellate court, as if one under Order VI Rule 17 of the Code of Civil Procedure, 1908, be allowed as a matter of course? 2. The appellant in A.S.12/2011 of the District Court, Thodupuzha as plaintiff filed O.S.No.153/2008 before the Subordinate Judge's Court, Kattappana for declaration of his title over the plaint schedule property, for setting aside Ext.A2 sale deed, and for consequential injunction. The trial court after a full-fledged trial, dismissed the suit vide judgment dated 24.11.2010. Aggrieved by the same, the plaintiff preferred the aforesaid appeal. During the pendency FAO 100 of 2013 -: 2 :- of the appeal, towards the fag end, it seems that the plaintiff has chosen to file I.A.No.534/2012 seeking an amendment of the plaint for incorporating a prayer for declaration that Ext.A2 sale deed executed by the 2[nd] defendant in favour of the first defendant is void and not binding on the plaintiff or the plaint schedule property as relief No.1, and to incorporate a relief of recovery of possession of the plaint schedule property from the defendants as relief No.2, and also for amending the valuation portion of the plaint. 3. Even though it was objected to, it seems that the lower appellate court has chosen to allow I.A.No.534 of 2012 and then to remit the matter to the trial court for deciding the suit afresh, after incorporating the amendments in the plaint. Of course, an opportunity has been granted to the defendants to file additional pleadings, by way of additional written statement. It is aggrieved by the said remand, the present appeal has been filed. 4. Heard learned counsel for the appellants FAO 100 of 2013 -: 3 :- Sri.Sathish Ninan, and learned counsel for the first respondent, Sri.N. Subramanian. Learned counsel for the appellants has pointed out that after the amendment of the provisions contained in Order VI Rule 17 of the CPC, the court below ought not to have allowed the amendment application, as a matter of course, by taking the matter lightly. It has also been argued that the legal position has changed a lot after the amendment. _Per contra_ , the learned counsel for the respondent has argued that the amendments sought for will not change the nature and character of the suit and there was nothing wrong on the part of the the lower appellate court in allowing the amendment sought for. 5. Both the learned counsel are relying on the decision in _**Abdul Rehman and another v. Mohd. Ruldu and others** [(2012) 11 SCC 341]_ wherein it was held that if the factual matrix pleaded contains the relief sought for by way of an amendment, the court can liberally grant such an FAO 100 of 2013 -: 4 :- amendment under Order VI Rule 17 CPC for incorporating such a relief. It was further held that an amendment should be allowed only when it should minimize the litigation and when the same is required for determining the real questions in controversy, when the factual matrix also contains such a plea. The learned counsel for the appellants has produced a copy of I.A.No.534/12. 6. The plea taken up in the affidavit for seeking the amendment is as contained in paragraph 2 of I.A.No.534/12 which reads as follows: “On going through the plaint, while preparing for the arguments in the above appeal, it is noticed that in the RELIEF portion of the plaint, it is inadvertently prayed for as, one “for setting aside the sale deed in question, instead of praying for a declaration that it is void and not binding on the plaintiff or the plaint schedule property.” After executing the impugned sale deed by the 2[nd] respondent in favour of the first respondent, they claim that, FAO 100 of 2013 -: 5 :- the first respondent is in possession of the plaint schedule property. In the circumstances, the prayer for the recovery of the plaint schedule property has also to be incorporated in the relief portion of the plaint. The pleadings in the plaint have to be amended in the aforesaid manner which is necessary for the proper adjudication of the dispute in the above case.” 7. It seems that regarding the amendment sought for as relief No.1, there is absolutely nothing to challenge. The said plea is already available in the factual matrix set out in the unamended plaint and therefore, the said amendment sought for is only formal and in fact, inconsequential. At the same time, with regard to the second amendment sought for, i.e., recovery of possession, it seems that the same tend to change the very nature and character of the suit as the one set out in the unamended plaint. The learned counsel for the appellants has pointed out that in _**Abdul Rehman and another**_ ( _supra_ ) it has been FAO 100 of 2013 -: 6 :- held that proviso to the amended Order VI Rule 17 CPC to some extent curtails the absolute discretion to allow amendment at any stage. It seems that in such cases, the party can invoke an amendment and sustain an application for the same only when it is shown that in spite of due diligence he could not seek such an amendment of the plaint at the appropriate stage and therefore, it necessitated the filing of an application at a later stage. 8. As rightly pointed out by the learned counsel for the appellants, necessary pleading with regard to such an aspect should be there in the application seeking amendment. Here, in paragraph 2 of the affidavit filed in support of I.A.No.534/12, based on which the amendment has been sought for, no such averments are there which enable the party to prefer an amendment at a later stage, that too, during the stage of appeal. 9. The learned counsel for the appellants is relying on the decision in _**Samuel J. & others v. Gattu Mahesh**_ FAO 100 of 2013 -: 7 :- _**and others** [2012 (2) SCC 300]_ wherein it has been categorically held that no application under Order VI Rule 17 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 appellants further relies on the decision in _**Rajkumar Gurawara(dead) through Lrs. v. M/s S.K. Sarwagi and**_ _**Co. (P) Ltd** .[2008 (14) SCC 364]_ wherein also it was clearly held by the Apex Court that after the commencement of trial, in order to sustain the amendment, the party who seeks the amendment has to show that despite due diligence he could not raise the issue before the commencement of trial and only on such a satisfaction the court can allow the amendment at a later stage after the commencement of trial. 10. An identical situation has been dealt with by the Apex Court in _**State of Maharashtra v. Hindustan**_ FAO 100 of 2013 -: 8 :- ## _**Construction Company Ltd.** [(2010) 4 SCC 518]_ wherein the Apex Court held that the appellate court was perfectly justified and right in rejecting the amendment sought for during the appellate stage. It was held therein, “Pleadings and particulars are required to enable the court to decide true rights of the parties in trial. Amendment in the pleadings is a matter of procedure. Grant or refusal thereof is in the discretion of the court. But like any other discretion, such discretion has to be exercised consistent with settled legal principles.” 11. The learned counsel for the first respondent is relying on the decision of the Gujarath High Court in _**Jagnabalkya Chakraborty v. Bidyarthi Chakraborty and**_ _**others** [2006 KHC 3475]_ wherein it was held that in a case wherein the amendment of pleadings sought for by a party under Order VI Rule 17 cannot be allowed; the court can invoke the provisions under Section 153 of the CPC to allow such an amendment. I do not find any merit in the said FAO 100 of 2013 -: 9 :- argument. Under Section 153 CPC, what is dealt with is the general power of amendment. The procedure should be the one as contemplated under Order VI Rule 17. Sections in the Code of Civil Procedure are substantive law within the procedural law and the Orders in the CPC clearly depicts the procedure to be followed with necessary Rules. The procedural law cannot substantially deviate from that part of the substantive law contained in the Sections. When one thing is clearly prohibited by the Orders, it cannot be said that the Sections permit the same. Matters being so, I respectfully disagree with the view taken by the Gujarath High Court in the matter. 12. On hearing either side and on a perusal of the pleadings and records, it is evident that at the most the court below could have granted an amendment of relief No.1 as the same finds a place in the factual matrix and were already before the court, and especially when such an amendment is evidently inconsequential. As far as the relief FAO 100 of 2013 -: 10 :- of recovery of possession is concerned, it seems that a new relief has been sought for, which necessarily changes the nature and character of the suit, and such an amendment could not have been allowed after the commencement of trial. When such an amendment cannot be allowed after the commencement of trial, it cannot be thought of in the appellate stage. It seems that the court below has laboured much to allow the application and unfortunately a remand has been made solely for the purpose of deciding the suit on the basis of the said amendment. The order allowing the amendment based on I.A.No.534/12 is not at all legally sustainable or justifiable, and is liable to be set aside. Further, in stead of remitting the matter to the court below, the lower appellate court ought to have decided the appeal on merits and should have passed a judgment. In the result, this appeal is allowed and the impugned judgment is set aside. The appeal stands restored and is remitted to the court below for _denovo_ disposal in FAO 100 of 2013 -: 11 :- accordance with law after hearing both sides. Order dated 05.07.2012 passed by the lower appellate court in I.A.No.534/12 is set aside and I.A.No.534/12 stands dismissed. The parties shall appear before the court below on 03.09.2014. The lower appellate court shall effect a _denovo_ disposal of the appeal, quite untrammeled by any of the observations made by the lower appellate court in the impugned judgment. **Sd/-** **B. KEMAL PASHA, JUDGE** ul/- [True copy] P.S. to Judge