K.C. Thomas v. Achamma Mathew

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 29TH DAY OF AUGUST 2016/7TH BHADRA, 1938** **OP(C).No. 239 of 2016 (O) ------------------------** **IA.NO.3133/2015 IN OS.401/2008 OF MUNSIFF COURT, THIRUVALLA -------------** ## **PETITIONER/RESPONDENT/DEFENDANT:** **-------------------------------** **K.C.THOMAS, AGED 56 YEARS, S/O.K.C.CHACKO,KARIKKADU HOUSE, PURAMATTOM.P.O & VILLAGE, MALLAPPALLY TALUK,THIRUVALLA.** **BY ADV. SRI.MVS.NAMBOOTHIRY** **RESPONDENT/PETITIONER/PLAINTIFF: --------------------------------** **ACHAMMA MATHEW, IKKARAMANGATHU VEEDU, THUKALASSERY MURI,THIRUVALLA, PIN-689101.** **BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **OP(C).No. 239 of 2016 (O) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1 TRUE COPY OF THE PLAINT IN O.S.401/2008** - **P2 TRUE COPY OF THE WRITTEN STATMENT FILED BY THE DEFENDANT IN O.S.401/2008** - **P3 TRUE COPY OF THE OBJECTION TO THE INJUNCTION APPLICATION IN O.S.401/2008** - **P4 TRUE COPY OF THE COMMISSIONER'S REPORT DATED 22/09/2008** - **P5 TRUE COPY OF THE COMMISSIONER'S REPORT DATED 13.03.2009** - **P6 TRUE COPY OF THE COMMISSIONER'S REPORT DATED 11.08.2014** - **P7 TRUE COPY OF THE PROOF AFFIDAVIT OF THE PLAINTIFF IN O.S.401/2008** - **P8 TRUE COPY OF PLAINTIFF'S PLAINTIFF'S DEPOSITION DATED 10.9.15 IN O.S.401/2008** - **P9 TRUE COPY OF THE AMENDMENT AMENDMENT APPLICATION FILED BY THE PLAINTIFF IN O.S.401/2008** - **P10 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER/DEFENDANT TO I.A.3133/15 IN O.S.401/2008** - **P11 TRUE COPY OF THE ORDER DATED 15.10.2015 IN I.A.3133 0F 2015 IN O.S.401/2008 OF THE MUNSIFF COURT,THIRUVALLA** - **P12 TRUE COPY OF THE JUDGMENT DTED 4.11.2015 IN O.P.(CIVIL) NO.2666/2015 OF THIS HON'BLE COURT** - **P13 TRUE COPY OF THE ORDER DATED 5.1.2016 IN I.A.3133/2015 IN O.S.401/2008 OF THE MUNSIFF COURT,THIRUVALLA.** - **RESPONDENT(S)' EXHIBITS -----------------------** **NIL.** ## **/ TRUE COPY /** **PJ** **P.S. TO JUDGE** ## **K. RAMAKRISHNAN, J.** .................................................. O.P.(C).No.239 of 2016 ....................................................... Dated this the 29[th] day of August, 2016. ## **JUDGMENT** This petition has been filed by the defendant in OS.No.401/2008 on the file of the Munsiff Court, Thiruvlla challenging Ext.P13 order passed by the court below under Article 227 of the Constitution of India. 2. It is alleged in the petition that the respondent herein filed Ext.P1 suit as OS.No.401/2008 seeking injunction against the petitioner using item No.2 pathway as according to her it is a private pathway and others have no right to use the same. In the plaint, the length the pathway was shown as 50 feet and having a width of 12.5 feet. The petitioner entered appearance and filed Ext.P2 written statement stating that it is a public pathway and the plaintiff cannot claim exclusive right over item No.2 pathway. She had also filed Ext.P3 objection to the injunction application filed by the plaintiff. An advocate commissioner was appointed and he had inspected the plaint item No.2 property on several occasions and submitted Exts.P4 to P6 reports stating that the length of item No.2 pathway is 65 meters and width of more than 12 feet and this was done in the year 2008. The plaintiff filed Ext.P7 proof affidavit and she was cross examined evidenced by Ext.P8 deposition of witness. It is thereafter that the respondent filed Ext.P9 application for amendment of plaint as O.P.(C).No.239 of 2016 2 IA.No.3133/2015 to correct the length of the pathway as 65 meter in the body of the plant as well in the schedule attached to the plaint. The petitioner filed Ext.P10 objection to the same stating that it was highly belated and the plaintiff has not proved the right over item No.2 pathway. The court below without considering the objection allowed the application as per Ext.P11 order which was challenged by the petitioner by filing OP(C). 2666/2015 before this court and this court by Ext.P12 judgment set aside Ext.P11 order and directed the court below to pass appropriate orders after considering the objection raised by the petitioner. It is thereafter that Ext.P13 order has been passed by the court below allowing the amendment which has been challenged by the petitioner by filing this petition. 3. Heard Sri. M.V.S.Nampoothiry, learned counsel appearing for the petitioner and Sri. Jacob P.Alex, learned counsel appearing for the respondent. 4. Learned counsel for the petitioner submitted that no valid reason has been given by the court below for allowing the amendment especially when the amendment application was filed after trial was started and evidence was closed. In view of the bar under proviso to Order 6 Rule 17, such an amendment should not have been entertained by the court below. Learned counsel also submitted that even the court below had come to the conclusion 3 O.P.(C).No.239 of 2016 that such an amendment is not required for proper disposal of the case. But later it was allowed only on the ground that the petitioner is an old lady. That is not a valid ground for allowing the amendment. He had relied on the decision reported in _**Abdul Rehman v. Mohd. Ruldu**_ (2012 (11) SCC 341) in support of his case. 5. On the other hand, learned counsel for the respondent submitted that no prejudice will be caused on account of the amendment as the existence of the pathway has not been disputed. It is only clarificatory in nature in tune with the commissioner's report regarding the length of the pathway. The question as to whether it is public pathway or private pathway is a matter to be decided on merits on the basis of evidence. So the court below was perfectly justified in allowing the application. The counsel had relied on the decisions reported in _**Usha Devi v. Rijjwan Ahamd**_ (2008 (3) SCC 717) and _**Sajjan Kumar v. Ram Kishan**_ (2005 (13) SCC 89) in support of his case. 6. It is an admitted fact that the respondent herein filed Ext.P1 suit as OS.No.401/2008 before the Munsiff Court, Thiruvalla for permanent prohibitory injunction restraining the petitioner herein from trespassing into item No.2 pathway. According to the plaintiff, who is the respondent herein, it is a private pathway over which the defendant had no right. On the other hand, the 4 O.P.(C).No.239 of 2016 petitioner filed Ext.P2 written statement wherein he had claimed that it is not a private pathway but it is a public pathway being enjoyed by the defendant as well as others as well. Along with the plaint, a commission was taken out and on the basis of the objection filed, commissioner’s report was remitted and subsequent reports were obtained which will be evident from Exts.P4 to P6 wherein the length of the disputed item No.2 pathway was shown as 65 meters whereas in the plaint the length of the pathway was shown as only 50 feet. It is true that evidence in this case was over and it is thereafter that the petitioner filed Ext.P9 amendment application to amend the length of the pathway as 65 meters instead of 50 feet alleged in the body of the plaint as well as in the description of the pathway shown as item No. 2 in the plaint schedule. The respondent filed Ext.P10 objection wherein he had stated that it is only highly belated. He had not disputed the length of the pathway or existence of the pathway as such. His case was that the plaintiff has not proved that she is the exclusive owner of that pathway and it is not a public pathway as claimed by the defendant in the suit. 7. Earlier the court below had allowed the amendment application vide Ext.P11 order on the premises that no objection was filed. That was challenged by the petitioner by filing a petition before this court as OP(C).No.2666/2015 and this court by Ext.P12 5 O.P.(C).No.239 of 2016 order allowed the petition at the admission stage itself and set aside Ext.P11 order passed by the court below and directed the court below to consider the objection and pass appropriate orders and it is thereafter that Ext.P13 impugned order has been passed. 8. It is true that while considering the point for consideration, the court below had observed that “more over the amendment sought is not seems to be essential for deciding the suit. Whatever the length of way, its existence was admitted by both the parties. The way was clearly identified by the commissioner who visited the property on different occasions”. Further in page 3 of the order it was mentioned that “the petitioner is an aged lady, no prejudice will be caused to the defendant by way of the proposed amendment”. It is also mentioned that “the plaintiff ought to have filed the amendment application without delay but considering the age of the plaintiff and other circumstances it was excused in the interest of justice and the IA was allowed”. There is no dispute regarding the propositions laid down in the decision relied on by the counsel for the petitioner in _**Abdul Rehman v. Mohd. Ruldu**_ (2012 (11) SCC 341) wherein it has been held that if such an amendment application is made after commencement of the trial, the court has to arrive at a conclusion that in spite of due diligence, the plaintiff could not have raised the matter before commencement of the trial, Order 6 Rule 17 proviso to some extent 6 O.P.(C).No.239 of 2016 gives absolute discretion to allow amendment at any stage. The object of Order 6 Rule 17 is that court should try merits of the case that comes before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. The main purpose of allowing amendment is to minimise litigation and that relief sought by way of amendment was barred by limitation to be considered in the facts and circumstances of each case. The same view has been reiterated in the decision reported in _**Usha Devi v. Rijjwan Ahamd**_ (2008 (3) SCC 717) and _**Sajjan Kumar v. Ram Kishan**_ (2005 (13) SCC 89). 8. In this case, there is no dispute regarding the existence of pathway as item No. 2. The only question to be decided is whether it is a private pathway as claimed by the plaintiff or it is a public pathway as claimed by the defendant and whether the plaintiff is entitled to get an injunction as prayed for. The existence of pathway is not in dispute. The length of pathway is also not much relevant as observed by the court below but that does not mean that the amendment sought for is not required for the purpose of identifying the existence of pathway claimed by the parties. The respondent is aged 85 years. So the court below had taken a lenient view that it was an inadvertent omission on the 7 O.P.(C).No.239 of 2016 part of the plaintiff in not making the amendment in time. Since the amendment sought for is only of clarificatory in nature, the length of which has not been disputed, allowing amendment even after the trial, has not caused any prejudice to the respondent, that was the reason why the court below had exercised the discretion and allowed the application for amendment. So under such circumstances, this court feels that there is no ground made out for interfering with the order passed by the court below especially when no prejudice has been caused to the petitioner in allowing the amendment as it has not changed the nature of the suit or relief claimed but only clarified the existence of the length of pathway which has been inadvertently shown in the plaint as 50 feet instead of 65 meters in tune with the commissioner's report filed by the commissioner in this regard. So the petition lacks merit and the same is hereby dismissed. The interim order of stay granted is hereby vacated. Registry is directed to communicate a copy of this judgment to the court below at the earliest. ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl O.P.(C).No.239 of 2016 8