KOMAN GURUKKAL MEMORIAL EDUCATIONAL AND CHARITABLE TRUST v. K BALAGOPALAN AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 28TH DAY OF JANUARY 2013/8TH MAGHA 1934** ## **OP(C).NO. 82 OF 2013 (O) ------------------------** ## **I.A. NO.2042 OF 2010 IN O.S. NO.58 OF 2010, MUNSIFF'S COURT, HOSDURG** ## **PETITIONER(S)/PLAINTIFFS:** **--------------------------------------** **1. KOMAN GURUKKAL MEMORIAL EDUCATIONAL AND CHARITABLE TRUST (REGISTRATION NO.S-39/1968 REGISTERED UNDER THE SOCIETIES REGISTRATION ACT) OFFICE AT KARIMBIL HIGH SCHOOL,KUMBALAPALLY PERIYANGANAM.P.O,KARINDALAM VILLAGE,HOSDURG TALUK KASARAGOD DISTRICT REPRESENTED BY ITS EXECUTIVE TRUSTEE K.K.NARAYANAN AGED 57 YEARS,S/O.LATE K.KALLYANI AMMA,KUMBALAPALLY PERIYANGANAM.P.O,KARINDALAM VILLAGE,HOSDURG TALUK KASARAGOD DISTRICT.** **2. K.K.NARAYANAN, AGED 57 YEARS EXECUTIVE TRUSTEE KOMAN GURUKKAL MEMORIAL EDUCATIONAL AND CHARITABLE TRUST S/O.LATE K.KALLYANI AMMA,KUMBALAPALLY PERIYANGANAM.P.O,KARINDALAM VILLAGE,HOSDURG TALUK KASARAGOD DISTRICT.** **3. K.VISHWANATHAN, AGED 60 YEARS GOVERNING TRUSTEE KOMAN GURUKKAL MEMORIAL EDUCATIONAL AND CHARITABLE TRUST S/O.LATE KARIMBIL KUNHAMBU,RESIDING AT PALATHADAM PUTHARIYADUKKAM.P.O,NILESHWAR VIA,PEROLE VILLAGE HOSDURG TALUK,KASARAGOD DISTRICT.** ## **O.P(C)NO.82 OF 2013** **4. K.SUSHEELA, AGED 55 YEARS MEMBER,BOARD OF TRUSTEE KOMAN GURUKKAL MEMORIAL EDUCATIONAL AND CHARITABLE TRUST D/O.LATE KARIMBIL KUNHAMBU,KUMBALAPALLY PERIYANGANAM.P.O,KARINDALAM VILLAGE,HOSDURG TALUK KASARAGOD DISTRICT.** **BY SENIOR ADVOCATE SHRI T.KRISHNAN UNNI SRI.JAWAHAR JOSE SMT.CISSY MATHEWS** ## **RESPONDENT(S)/DEFENDANTS:** **--------------------------------------------------** ## **1. K. BALAGOPALAN, AGED 63 YEARS** - **S/O.LATE KARIMBIL KUNHIKOMAN,KONNAKKAD.P.O MALOTH VILLAGE,HOSDURG TALUK KASARAGOD DISTRICT. PIN-671 533.** **2. K.RAJAGOPALAN,, AGED 58 YEARS S/O.LATE KARIMBIL KUNHIKOMAN,KARINDALAM HOUSE KARINDALAM.P.O,HOSDURG TALUK KASARAGOD DISTRICT. PIN-671 314** **(NOW RESIDING AT GOKULAM HOUSE KARINDALAM.P.O,HOSDURG TALUK,KASARAGOD DISTRICT.)** **3. K.MADANAGOPALAN,, AGED 61 YEARS S/O.LATE KARIMBIL KUNHIKOMAN RESIDING AT 'GANESH SADANAM',KONNAKKAD.P.O MALOTH VILLAGE,HOSDURG TALUK KASARAGOD DISTRICT. PIN-671 533.** ## **4. NIRMALA RAJAGOPALAN,, AGED 46 YEARS** - **W/O.K.RAJAGOPALAN,KARINDALAM HOUSE,KARINDALAM.P.O HOSDURG TALUK KASARAGOD DISTRICT. PIN-671 314** **(NOW RESIDING AT GOKULAM HOUSE KARINDALAM.P.O,HOSDURG TALUK,KASARAGOD DISTRICT.)** **5. K.JAYALAKSHMI,, AGED 48 YEARS W/O.DR.C.K.NARAYANAN,PARAPPA.P.O,PARAPPA VILLAGE HOSDURG TALUK,KASARAGOD DISTRICT. PIN-671 533.** ## **O.P(C)NO.82 OF 2013** **6. RAJALAKSHMI MADHUSOODHANAN,, AGED 46 YEARS W/O.MADHUSOODHANAN,RETIRED DIG OF POLICE KARINDALAM VILLAGE,HOSDURG TALUK KASARAGOD DISTRICT. PIN-671 314 (NOW RESIDING AT KONNAKKAD KONNAKKAD.P.O,PARAPPA VIA,HOSDURG TALUK KASARAGOD DISTRICT.) PIN-671 533.** **7. SANTHA GANGADHARAN,, AGED 56 YEARS W/O.DR.GANGADHARAN,RESIDING AT 'THULASI' NILESHWAR.P.O,PEROLE VILLAGE,HOSDURG TALUK KASARAGOD DISTRICT. PIN-671 314.** **8. THE DISTRICT REGISTRAR OF SOCIETIES, HAVING OFFICE AT CIVIL STATION,VIDYANAGAR.P.O KASARAGOD. PIN-671 123.** **9. THE ASSISTANT EDUCATIONAL OFFICER, CHITTARIKKAL.P.O,CHITTARIKKAL VILLAGE,HOSDURG TALUK KASARAGOD DISTRICT. PIN-671 326.** **10. THE DISTRICT EDUCATIONAL OFFICER, OFFICE NEAR TOWN HALL,KANHANGAD,HOSDURG TALUK KASARAGOD DISTRICT. PIN-671 315.** **11. THE STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR,CIVIL STATION VIDYANAGAR.P.O,KASARAGOD. PIN-671 123.** ## **R1,2 BY ADV. SRI.KODOTH SREEDHARAN R BY GOVERNMENT PLEADER** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P(C)NO.82 OF 2013** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **P1- TRUE COPY OF PLAINT IN PLAINT IN OS.NO.58 OF 2010 ON THE FILES OF MUNSIFF COURT, HOSDURG.** **P2- TRUE COPY OF AMENDMENT APPLICATION FILED BY THE PETITIONERS AS IA NO.2042 OF 2010.** **P3- TRUE COPY OF COUNTER FILED BY RESPONDENTS 1,2 AND 4 TO EXHIBIT P2 APPLICATION.** **P4- TRUE COPY OF COUNTER FILED BY RESPONDENTS 3,5 AND 6 TO EXHIBIT P2 APPLICATION.** **P5- TRUE COPY OF ORDER DATED 7.6.2011 IN I.A.NO.2042 OF 2010.** **P6- TRUE COPY OF JUDGMENT IN OP(CIVIL) NO.2029 OF 2011 ON THE FILES OF HON'BLE HIGH COURT.** **P7- TRUE COPY OF ORDER DATED 11.12.2012 IN IA NO.2042 OF 2010.** **P8- TRUE COPY OF ORDER DATED 5.1.2011 BEARING NUMBER GO(RT) NO.88/11/G.EDN.** **P9- TRUE COPY OF WRITTEN-STATEMENT FILED BY RESPONDENTS 9 TO 11 IN THE SUIT.** ## **RESPONDENT(S)' EXHIBITS:** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.82 of 2013 ==================================== Dated this the 28[th] day of January, 2013 J U D G M E N T** Exhibit P7, order dated 11.12.2012 on I.A. No.2042 of 2010 in O.S. No.58 of 2010 of the Munsiff's Court, Hosdurg is under challenge. 2. Petitioners-plaintiffs filed the suit for declaration and consequential injunction. Later, they filed Ext.P2, application for amendment of Ext.P1, plaint in that they wanted to delete a statement from paragraph 5 of the plaint. That application was initially allowed by the learned Munsiff as per Ext.P5, order which was set aside by this Court by Ext.P6, judgment in O.P(C) No.2029 of 2011 as it was cryptic. Later, learned Munsiff passed Ext.P7, detailed order dismissing Ext.P2, application. 3. Learned Senior Advocate referred to the averments in paragraphs 5 and 12 of the plaint and contended that the statement sought to be deleted from paragraph 5 is obviously a wrong statement which has crept in by inadvertence. It is also contended that some of the statements in paragraph 5 and 12 are not at all necessary for consideration of reliefs sought for by the **O.P(C) No.82 of 2013** ## -: 2 :- petitioners as revealed from the reliefs sought for in paragraph 16 of the plaint. Relying on on the decision in **Rahima Ummal Sara Ummal and Another v. Sarasamma** (2012 [3] KHC 483) it is contended that when a statement is shown to be a mistake, it is open to the court to permit the wrong statement to be deleted by amendment. To support the contention that the statement in paragraph 5 sought to be deleted is a mistake, my attention is also drawn to the contentions raised by defendants 9, 10 and 11 in their written statement, in paragraph 4. 4. Learned counsel for respondents 1 and 2 contends that there is a vital admission made by the petitioners in paragraph 5 of the plaint as to the management of the two schools involved. It is contended that according to respondents 1 and 2, the said schools are managed by the 1[st] petitioner trust and in the circumstances the statement in paragraph 5 of the plaint may not be allowed to be deleted by amendment. 5. True that in **Rahima Ummal Sara Ummal and Another v. Sarasamma** this Court held that a wrong statement can be corrected though the result of the same would be withdrawal of an admission based on mistaken facts. The ## **O.P(C) No.82 of 2013** ## -: 3 :- question whether the statement in paragraph 5 of the plaint is a mistake or not is a matter to be decided by the court if it arises for a decision on the pleadings and in view of the reliefs sought for in the plaint. Now there is an apparent contradiction between the statements in paragraphs 5 and 12 of the plaint as to the management of the two schools. No doubt, defendants 9, 10 and 11 in their written statement have taken up the stand which is similar to the statement in paragraph 12 of the plaint. 6. Having regard to the rival contentions raised by the parties I am inclined to think that the proper course is to permit petitioners seek amendment of the plaint by incorporating appropriate statements explaining whatever they have stated in paragraph 5 of the plaint if according to them it is a wrong statement made by inadvertence. 7. Even if the statement in paragraph 5 of the plaint amounts to an admission (I am not holding so), such admission can be explained away by amendment. Therefore notwithstanding Ext.P7, order I am inclined to permit petitioners to seek appropriate amendment to the plaint clarifying the statement in paragraph 5 (which was sought to be deleted by Ext.P2, application). ## **O.P(C) No.82 of 2013** ## -: 4 :- The Original Petition is disposed of as under: (i) While no interference is required with Ext.P7, order it is made clear that the said order will not stand in the way of petitioners seeking amendment of the plaint explaining whatever they have stated in paragraph 5 of the plaint and sought to be deleted as per Ext.P2, application. (ii) It is made clear that it is open to the petitioners to explain the said statement in paragraph 5 of the plant as a wrong statement which crept into the plaint by inadvertence. (iii) If any such application as above for amendment is preferred by the petitioners, learned Munsiff shall dispose of the same as early as possible after hearing the respondents as well untrammelled by any observations or finding contained in Ext.P7, order or the refusal of this Court to interfere with the said order. ## **THOMAS P. JOSEPH, JUDGE.** vsv