Komalam K.T. v. K. Rajan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 17TH DAY OF JANUARY 2018 / 27TH POUSHA, 1939** **OP(C).No. 3241 of 2017** **O.S.527/2013 OF THE PRINCIPAL MUNSIFF-I, KOZHIKODE** ## **PETITIONER/PETITIONER/PLAINTIFF:** **KOMALAM K.T., AGED 56, D/O KALOOR THOTTOOLI BALAN, EDAKKANDI HOUSE, KOOTTOOLI AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673016.** **BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA SMT.UMMUL FIDA SRI.E.C.AHAMED FAZIL** ## **RESPONDENT/RESPONDENT/DEFENDANT.:** **K. RAJAN, AGED 63, S/O SAMI, KADAPPAMANNIL HOUSE, KALATHILKUNNU AMSOM DESOM, PUTHIYARA POST, KOZHIKODE-673004.** **BY ADVS. SRI.SANTHARAM.P** **SMT.REKHA ARAVIND SRI.K.A.MOHAMED HARIS SRI.SANTHARAM.P** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **OP(C).No. 3241 of 2017 (O)** ## ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S NO.527 OF 2013 ON THE FILES OF THE PRINCIPAL MUNSIFF-1, KOZHIKODE. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S. NO.527 OF 2013 ON THE FILES OF THE PRINCIPAL MUNSIFF-1, KOZHIKODE. EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT DATED 18.11.2013 SUBMITTED IN O.S NO.527 OF 2013 ON THE FILES OF THE PRINCIPAL MUNSIFF-1 KOZHIKODE.** **EXHIBIT P4 TRUE COPY OF THE COMMISSION REPORT DATED 22.7.2014 IN O.S NO.527 OF 2013 ON THE FILES OF THE PRINCIPAL MUNSIFF-1, KOZHIKODE. EXHIBIT P4(A) TRUE COPY OF THE PLAN DATED 19.6.2014 IN O.S. NO.527 OF 2013 ON THE FILES OF THE PRINCIPAL MUNSIFF-1, KOZHIKODE. EXHIBIT P5 TRUE COPY OF THE APPLICATION I.A NO.3579 OF 2014 SEEKING TO REMIT COMMISSION REPORT AND THEN TO FILE FRESH COMMISSION REPORT AND PLAN FILED BY THE DEFENDANT IN O.S NO.527 OF 2013 ON THE FILES OF PRINCIPAL MUNSIFF-A, KOZHIKODE.** **EXHIBIT P6 TRUE COPY OF THE COMMISSION REPORT DATED 3.6.2017 IN O.S NO.527 OF 2013 ON THE FILES OF PRINCIPAL MUNISIFF-1, KOZHIKODE. EXHIBIT P6(A) A TRUE COPY OF THE PLAN DATED 3.9.2016 IN O.S NO.527 OF 2013 ON THE FILES OF PRINCIPAL MUNSIFF-1 KOZHIKODE. EXHIBIT P7 A TRUE COPY OF THE OBJECTION TO COMMISSION REPORT AND PLAN SUBMITTED BY THE DEFENDANT. EXHIBIT P8 TRUE COPY OF THE APPLICATION FOR AMENDMENT, I.A NO.3186 OF 2017 FILED IN O.S NO.527 OF 2013 ON THE FILES OF THE PRINCIPAL MUNSIFF-1, KOZHIKODE. EXHIBIT P9 TRUE COPY OF THE COUNTER STATEMENT TO AMENDMENT APPLICATION I.A NO.3186 OF 2017 FILED BY THE DEFENDANT IN O.S NO.527 OF 2013 ON THE FILES OF PRINCIPAL MUNSIFF -1, KOZHIKODE.** **OP(C).No. 3241 of 2017 (O)** **EXHIBIT P10 TRUE COPY OF THE ORDER DATED 1.11.2017 APPLICATION FOR AMENDMENT I.A NO.3186 IN O.S NO.527 OF 2013 PASSED BY THE PRINCIPAL MUNSIFF-1, KOZHIKODE. EXHIBIT P11 TRUE COPY OF THE CHIEF AFFIDAVIT AND DEPOSITION OF DW1 IN O.S NO.527 OF 2013 ON THE FILES OF THE PRINCIPAL MUNSIFF -1, KOZHIKODE.** ## **RESPONDENT(S)' EXHIBITS** **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** ## ALEXANDER THOMAS, J. ----------------------------O.P(C).No.3241 Of 2017 --------------------------------Dated this the 17th day of January, 2018. ## J U D G M E N T The main prayer in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India is as follows: “to call for the records leading to aExhibit P1 to P10 and set aside Exhibit P10 order dated 01/11/2017 passed by the Principal Munsiff Court-I, Kozhikode and allow Exhibit P8 application by allowing this Original Petition (Civil).” 2. The order under challenge in Ext.P-10 is the one rendered by the trial court (Principal Munsiff's Court-I, Kozhikode) on 1.11.2017 on I.A.No.3186/2017 in O.S.No.527/2013 whereby the plea made by the petitioner/plaintiff for amendment of the description of the boundaries in 'C' schedule has been rejected by the court below on the ground that it is highly belated. 3. Heard Sri.K.M.Firoz, learned counsel appearing for the petitioner/plaintiff and Sri.P.Santharam, learned counsel appearing for the 1st respondent/defendant. 4. The petitioner has filed O.S.No.527/2013 on the file of the Principal Munsiff's Court, Kozhikode, for mandatory injunction and ::2:: O.P(C).No.3241 Of 2017 permanent prohibitory injunction. The main case projected by the petitioner is that there was a mistake committed while describing the boundaries of 'C' schedule property. In the averments in the plaint the description of the scheduled properties as well as the descriptions of the boundaries of the scheduled properties including schedule 'C' have been correctly made. But that in the schedule, the boundaries of 'C' schedule properties are shown as 'B' schedule. It is submitted that the mistake has occurred only in the descriptions of the boundaries of 'C' schedule properties which are referred to as 'B' schedule. It is stated that it was a bonafide mistake and the mistake was noted only when DW-1 was cross-examined and thereupon Ext.P-8 application for amendment as I.A.No.3186/2017 was filed on 21.10.2017, after completion of the plaintiff's evidence and after tendering of evidence of PW-1, when the matter was listed for trial, praying that the plaint may be permitted to be amended. R-1 has filed counter affidavit before the court below as per Ext.P-9 strongly opposing the plea for amendment. The plea for amendment has been rejected as the said application has been filed almost at the fag end of the evidence stage. Order VI Rule 17 of the Code of Civil Procedure enables a party to amend his pleading at any stage of the proceedings. A reading of Rule 17 of Order VI of the Code ::3:: O.P(C).No.3241 Of 2017 of Civil Procedure makes it clear that the court is empowered at any stage of the proceedings to allow or amend or alter his pleadings so long as such amendment of pleadings are necessary for the purpose of determining the question of real controversy. However, no prejudice should be caused to the other side on the basis of such amendment. But the provision in Order VI Rule 17 has been curtailed by the proviso engrafted thereto as per Amendment Act 22 of 2002 and the said proviso reads as follows: “ R.17. Amendment of pleadings .- The Court may at any state 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.” In the instant case the stage of the operation of the bar envisaged in the above said proviso has actually arisen inasmuch as the evidence of the plaintiff was completed and even the defence witness DW-1 has tendered his evidence on 21.10.2017 and it is on that day Ext.P-8 application for amendment dated 21.10.2017 has been submitted by the petitioner/plaintiff. Therefore, obviously the bar envisaged is attracted. The only question to be decided is as to whether the court ::4:: O.P(C).No.3241 Of 2017 could come to the conclusion that in spite of due diligence the petitioner could not raise the matter before commencement of the trial. If that aspect is established, then it would be an exception to the bar mentioned in the first limb of that proviso. The applicability of the proviso to Order VI Rule 17 of the C.P.C has been dealt with in a catena of rulings of the Apex Court in various decisions. The judgment of the Apex Court in the decision in J.Samuel & ors. v. Gattu Mahesh & ors, reported in (2012) 2 SCC 300 clearly holds the position that no application for amendment could 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 the trial. It was held by the Apex Court in the decision in J.Samuel & ors. v. Gattu Mahesh & ors ., reported in (2012) 2 SCC 300 = 2012 KHC 4030 that due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested and due diligent efforts are requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief and that an advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term 'due diligence' is specifically used in the Code so as ::5:: O.P(C).No.3241 Of 2017 to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. It will be profitable to refer to paras 12 to 14 of the above said judgment of the Apex Court in Samuel's case (supra), which read as follows : (see KHC Report). “12) The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The Court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states 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. 13) Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term 'Due diligence' is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. 14) A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term 'due diligence' determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit.” In the instance case it is not in dispute that the description of the boundaries of 'C' schedule property has been correctly made in the ::6:: O.P(C).No.3241 Of 2017 averments in the plaint. Mistake has occurred in the schedule for the description of the boundaries of 'C' schedule which has been shown as 'B' schedule. It is also relevant to note that the court below has clearly noted that the Advocate Commissioner appointed by the court has inspected the property and submitted report as early as on 18.11.2013, which also has disclosed this error. So, atleast mere perusal of the Advocate Commission Report submitted as early as on 18.11.2013 would have disclosed to the party concerned about the mistake that happened in the description of the boundaries of 'B' schedule shown as 'C' schedule. The main contention now projected before this Court is that the said mistake came to the notice of the counsel for the plaintiff only at the time of cross-examination of DW-1 on 21.10.2017. But the petitioners had sufficient opportunity to be alerted when atleast commissioner's report was submitted 18.11.2013. That apart, even a perusal of the plaint averments and schedule would have disclosed that description in the schedule of boundaries of B schedule property shown as 'C' schedule is different from that shown in the averments in the plaint. In view of these aspects, it cannot be held that exception to the proviso regarding due diligence has been brought out in the instant case. The bar in the first limb of proviso indisputably has arisen ::7:: O.P(C).No.3241 Of 2017 inasmuch as the evidence has been adduced and the application for amendment was filed only thereafter. In this view of the matter, it cannot be said that the view taken by the trial court is in any manner tainted by gross illegality or manifest perversity. In the light of the above aspects, it may not be proper for this Court to exercise its powers of visitorial superintendence conferred under Article 227 of the Constitution of India, in the facts and circumstances of this case. Accordingly, this Court is constrained to hold that there is no merit in the petition and the same will stand dismissed. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P. A to Judge.