Kamalamma v. Vijayamma

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2015-06-01
Court Decision / Holding: Both petitions are allowed. The impugned order is set aside. The petitioner Kamalamma shall pay costs of Rs. 2,500 in each case to the respondents within two weeks. The amendments sought by the plaintiff will stand allowed, and the plaint and the written statement in the respective suits shall be amended. Parties may adduce evidence in view of the amendments. The trial court is directed to dispose of the case within three months from the date of production of this common judgment. All pending interlocutory applications are dismissed.
Final Disposition: Petitions allowed; common judgment; amendments to pleadings permitted; costs awarded; evidence may be led on amended pleadings; trial court to dispose within three months; interlocutory applications dismissed.

Parties to the Case

Appellants / Petitioners

Kamalamma

Respondents

Vijayamma

Legal Representation & Advocates

Counsels for Petitioners

• K. Shaj

Counsels for Respondents

• P. Fazil
• M. S. Unnikrishnan
• Smt. Jayasree Manoj
• Sri. Jithin Paul Varghese

Case Synopsis & Summary

This is a common judgment disposing of OP(C) Nos.1302 and 1306 of 2014, filed by Kamalamma, who is plaintiff in one suit and defendant in the other, challenging the orders on amendments to pleadings. The two petitions concern amendments to the plaint and the written statement in two suits arising from an oral agreement to assign a share in property and a suit for recovery of possession based on title. Kamalamma alleges an understanding with Vijayamma on 21-04-1984, with total sale consideration of Rs 75,000, where Rs 10,000 was paid as advance and Rs 55,000 later. She seeks to amend the date 26-12-1997 to 26-12-1992, contending it was a clerical/bonafide error, and that the amendment is essential for the proper adjudication of the lis. Respondents oppose as belated, frivolous, vexatious amendments that would prejudice their rights and potentially affect limitations; they also challenge the veracity of the oral agreement. The court notes the belated nature of the amendment but affirms the legal power to amend post-trial commencement to meet ends of justice for effective lis adjudication. Ultimately, the petitions are allowed; the impugned order is set aside; costs are imposed; amendments stand; evidence may be adduced; and the trial court is directed to dispose of the matter within three months.

Provisions of Law Cited

Code of Civil Procedure, Order 6 Rule 17 (CPC)

Legal Doctrines & Maxims

Rights accrued to a party cannot be defeated by allowing late amendments; ends of justice require that amendments be allowed to meet the ends of justice and for effective adjudication of lis

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that the proposed amendments to the plaint and the written statement are bonafide corrections of clerical errors, specifically changing the year in the alleged oral agreement from 1997 to 1992. The amendment will correct the record, ensure fair adjudication, and not seeks to advance or derail the limitation defense; the earlier amendment conduct shows no oppression. The court has power to allow amendments after trial to meet ends of justice and for the effective lis, and the amendment should be permitted to proceed with evidence on updated pleadings.

Contentions of Respondents

Respondents contend that the amendments are belated, vexatious, and intended to subvert limitations and rights accrued; they challenge the underlying oral agreement as false; rely on Sugathan K.R. v. Jyothi to suggest enumerated permissible circumstances for amendments, but urge that the belated amendment cannot be entertained and would prejudice their defense.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sugathan K.R v. Jyothi	2014(3) KHC 229	Mentioned Only	Cited as a persuasive authority regarding enumerated circumstances for amendment, but the court distinguishes or does not adopt its propositions in the present context.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 1ST DAY OF JUNE 2015/11TH JYAISHTA, 1937** ## **OP(C).No. 1302 of 2014 (O)** **---------------------------** ## **PETITIONER :** **----------------------** **KAMALAMMA, AGED 61 YEARS, D/O. BHAVANI AMMA OF PARAPPATTU VEEDU, VAZHAMUTTOM MURI, VALLICODE VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT PRESENTLY RESIDING AT "KARTHIKA", KUTTAMATHU, CHERUVATHOOR P.O., KASARAGOD DISTRICT PIN 673 313** **BY ADV. SRI.K.SHAJ.** **RESPONDENT :** **----------------------** **VIJAYAMMA, AGED 58 YEARS, W/O.RAJANKUTTY, RESIDING AT KARAMVELIL HOUSE, KALLELI P.O, PATHANAMTHITTA DISTRICT 689 645.** **BY ADVS. SRI.P.FAZIL.** **SRI.M.S.UNNIKRISHNAN. SMT.JAYASREE MANOJ. SRI.JITHIN PAUL VARGHESE.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2015, ALONG WITH OPC. 1306/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 1302 of 2014 (O) -----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** ## **-------------------------------------** **EXHIBIT P1 : TRUE COPY OF PLAINT IN O.S NO 141/2010 ON THE FILE OF THE MUNSIFF'S COURT PATHANAMTHITTA. EXHIBIT P2 : TRUE COPY OF I.A NO 817/2014 IN EXHIBIT P1 SUIT FILED BBY THE PETITIONER. EXHIBIT P3 : TRUE COPY OF OBJECTION IN IA NO 817/2014 IN EXHIBIT P1 SUITY FILED BY THE RESPONDENT. EXHIBIT P4 : TRUE COPY OF ORDER DATED 27/05/2014 IN IA NO 817/2014 IN O.S NO 141/2010 OF THE MUNSIFF'S COURT,PATHANAMTHITTA** **RESPONDENT(S)' EXHIBITS : NIL. ---------------------------------------** **//TRUE COPY//** **P.A TO JUDGE** **amk** ## **A.HARIPRASAD, J.** **------------------------------------------------** ## **O.P (C) Nos.1302 & 1306 of 2014** **-----------------------------------------------Dated this the 1[st] day of June, 2015.** ## **C O M M O N J U D G M E N T** As common questions arise in both these original petitions, they have been heard together and disposed by this common judgment. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 3. Petitioner in both the petitions is the same person. She is the plaintiff in one suit and the defendant in a suit filed by the respondent. 4. The suit filed by the petitioner is one for specific performance of an alleged agreement to assign made orally between the parties. Respondents' suit is one for recovery of possession of the property based on her title. It is worthwhile to note that the parties are sisters. Learned counsel for the respondents contended that the application for amendment of the plaint and the written statement filed by the petitioner in the **O.P (C) Nos.1302 & 1306 of 2014 - 2 -** respondents' suit are frivolous, vexatious and highly belated. In answer to this argument, learned counsel for the petitioner submitted that it was a bonafide mistake and only a clerical error is now sought to be corrected. Ext.P3 in O.P No.1306/2014 is the plaint filed by the petitioner against the respondent. In paragraph 3, it is mentioned that there was an understanding between the petitioner and the respondent that the former would purchase the share of the latter and the understanding was on 21-04-1984. Total sale consideration was Rs.75,000/-. It is further alleged in the plaint, of course which is stoutly denied by the respondent, that Rs.10,000/- was paid as advance on the date of agreement and later on 26-12-1997, the respondent received a sum of Rs.55,000/-. These contentions are strongly opposed by the respondents. The petitioner now wants to correct a date 26-12-1997 as 26-12-1992. It is the submission of the learned **O.P (C) Nos.1302 & 1306 of 2014 - 3 -** counsel for the petitioner that same mistake was crept in the written statement as well filed by her in the other suit. 5. It is true that the trial in this case was started long before and both sides have adduced oral evidence. Now, it is posted for hearing. At that time, the petitions for amendment of the plaint and the written statement were filed. Learned counsel for the respondents submitted that the plaintiff/petitioner had amended the plaint and written statement on an earlier occasion. Even at that time she did not seek an amendment as now sought for. Basing on a decision of Division Bench of this Court in _**Sugathan K.R v. Jyothi (2014(3) KHC 229),**_ it is contended that this Court has enumerated certain situations, though the enumeration is not exhaustive, indicating the circumstances under which an amendment could be effected. It is settled law that a right accrued to one party cannot be taken out by allowing **O.P (C) Nos.1302 & 1306 of 2014 - 4 -** an amendment at the request of the other party. The specific contention of the respondents is that the alleged oral agreement to assign is false and the plaintiff is not entitled to get any relief in the suit for specific performance. It is also contended by the respondents' counsel that the alleged agreement to assign is hopelessly bared by limitation. Apprehension of the respondents is that if an amendment is allowed at this belated stage, her accrued right to seek dismissal of suit on the ground of limitation would be jeopardized. I am unable to agree with this contention since the plaintiff is not seeking preponement of the date from 1997 to later years. Actually, what is sought to be amended is postponement of the date from 1997 to 1992. Therefore, the question of limitation, if survives for consideration, will have to be considered on the basis of the evidence available in this case. **O.P (C) Nos.1302 & 1306 of 2014 - 5 -** 6. It is true that the application for amendment is highly belated. Amended provision in Order 6 Rule 17 C.P.C imposes a mandate to see that all amendment applications are filed before starting of the trial. It is settled by pronouncements of apex court that the court has power to allow amendments after the commencement of the trial to meet the ends of justice and for the effective adjudication of the lis. 7. The respondents are entitled to be compensated for the trauma and the trouble in which the petitioner has put them by filing a belated application for amendment. Therefore, I deem it fit to mulct costs on the petitioner in this matter. In the result, both the petitions are allowed. The impugned order is set aside. The petitioner shall pay a costs of Rs.2,500/- (Rupees two thousand five hundred only) in each case to the respondents within a period of two weeks from **O.P (C) Nos.1302 & 1306 of 2014 - 6 -** today. Thereafter, the amendments sought by the plaintiff will stand allowed and the plaint and the written statement in the respective suits be amended. Parties, if they feel so, are permitted to adduce evidence in view of the amendments to the pleadings. The court below shall dispose of the case within a period of three months from the date of production of this common judgment. All pending interlocutory applications will stand dismissed. Sd/- **A.HARIPRASAD, JUDGE.** **//True copy//** **P.A to Judge** amk