K.T. Gopalakrishnan v. Kodasseri Karyat Peethambaran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942** ## **OP(C).No.908 OF 2018** **AGAINST THE ORDER IN I.A.No.585/2018 IN OS 76/2015 DATED 20-03-2018 OF III ADDITIONAL SUB COURT, KOZHIKODE** ## **PETITIONER/PETITIONER NO.1 IN I.A. & PLAINTIFF NO.1 IN SUIT:** **K.T.GOPALAKRISHNAN, S/O. SANKARAN NAIR, AGED 58 YEARS, PULIYAPPURATH HOUSE, MAVOOR AMSOM, KAPPALLY DESOM, MAVOOR P.O., KOZHIKODE, PIN - 673 661.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** ## **RESPONDENTS/RESPONDENTS IN & PETITIONERS 2 & 3 IN I.A. DEFENDANTS & PLAINTIFFS 2 & 3 IN SUIT:** **1 KODASSERI KARYAT PEETHAMBARAN S/O. SANKARAN NAIR, AGED 68, PRESIDENT, PUTHIYAPURAM KUDUMBAKSHETHRAM NADATHIPPU COMMITTEE, PUTHIYAPPURATH HOUSE, MAVOOR AMSOM, KALPPALLY DESOM, MAVOOR P.O., KOZHIKODE, PIN - 673 661.** **2 KODASSERI KOZHIPPARAMBATH SREEDHARAN NAIR S/O. KRISHNAN NAIR, AGED 68, MAVOOR AMSOM, KANNIPARAMB DESOM, MOVOOR POST, KOZHIKODE, PIN - 673 661.** **3 KODASSERI KARYAT VENUGOPAL S/O. GOVINDAN NAIR, AGED 59, KODASSERY KARYAT HOUSE, MAVOOR AMSOM, KANNIPARAMB DESOM, MAVOOR POST, KOZHIKODE, PIN - 673 661.** - **4 ABDUL RASHEED, S/O. MOOSAKUTTY, AGED 55, IYYAPPARASSERY HOUSE, KARUMALAKKAD, VAZHAKKAD P.O., OORKKADAVU, MALAPPURAM, PIN - 673 640.** - **5 MUMTHAZ, W/O. ABDUL RASHEED, AGED 44, IYYAPPARASSERY HOUSE, KARUMALAKKAD, VAZHAKKAD P.O., OORKKADAVU, MALAPPURAM, PIN - 673 640.** OP(C).No.908 OF 2018 2 - **6 JULAINA, D/O. AISHA, AGED 34, ANHOOLI VEEDU, KANNIPARAMB P.O., KOZHIKODE - 673 661.** - **7 K.S. RAJU, S/O. K.S.SUBRAMANIAN, AGED 60, ANINHAVANIYIL VEEDU, P.O.PERUMPALA, KULANAD, KASARAGOD - 671 317.** - **8 GOPALAKRISHNAN NAIR, S/O. NARAYANAN NAIR, AGED 49, THAZHE PEEDIKAKKAL VEEDU, VELLALASSERI P.O., N.I.T., KOZHIKODE - 673 601.** - **9 DASAN, S/O. APPU NAIR, AGED 62, EDAVALATH HOUSE, MAVOOR AMSOM, KAPPALLY DESOM, MAVOOR P.O., KOZHIKODE, PIN - 673 661.** - **10 DILEEP KUMAR, S/O. RAGHAVAN NAIR, AGED 49, PULIYAPPURATH HOUSE, MAVOOR AMSOM, KAPPALLY DESOM, MAVOOR P.O., KOZHIKODE, PIN - 673 661.** **R4-5 BY ADVS. SRI.K.M.FIROZ** **SMT.M.SHAJNA R6, R8 BY ADVS. SRI.P.A.HARISH** **SRI.V.V.SURENDRAN R7 BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(C).No.908 OF 2018 3 ## **JUDGMENT** This original petition has been filed by the 1[st] plaintiff in O.S.No.76/2015, on the files of the III Additional Sub Court, Kozhikode. The order impugned in this Original Petition is Ext.P5, which has its genesis in an application numbered as I.A.No.585/2018 filed by the plaintiffs seeking leave to make certain amendments to the plaint. The learned Judge dismissed the application primarily holding that the first and the third amendments sought in the application are belated; while the second amendment was disallowed on the ground that it is contrary to Order I Rule 10(2) of the Code of Civil Procedure (CPC), since the plaintiffs are attempting to bring on record certain additional parties as defendants. 2. The order of the Trial Court has been assailed by the petitioner on various grounds, but principally that the Trial Court has not assessed the true impact of Order 6 Rule 17 of the CPC. 3. I have heard Smt.Anusree B., learned counsel appearing for the petitioner; Sri.P.A.Harish, learned counsel appearing for respondents 6 and 8; Sri.K.M.Jamaludheen, learned counsel appearing for the 7[th] respondent and OP(C).No.908 OF 2018 4 Smt.M.Shajna, learned counsel appearing for respondents 4 and 5. 4. Smt.Anusree B., learned counsel for the petitioner began her submissions by showing me from Ext.P5 order that the sole reason stated therein for disallowing amendments 1 and 3 sought in the application was that they are belated. She says that the fourth amendment sought was a consequential one, to change the valuation; while the 2[nd] amendment has been rejected solely saying that her client cannot seek to bring additional persons on the array of parties without making a proper application under Order I of the CPC. She submitted that the afore reasoning of the Trial Court is an error, since Order 6 Rule 17 of the CPC permits amendments to pleadings at any time, provided they are necessary for the purpose of determining the real questions in controversy between the parties. She proceeded to say that, therefore, the fundamental duty of the Trial Court was to verify whether the proposed amendments were necessary for the purpose of determining the real questions in the suit and that only thereafter could it have adverted to its proviso to assess whether the said amendments were belated. She submitted that contrary to the afore, the learned Trial Court immediately rushed to the OP(C).No.908 OF 2018 5 opinion that the amendments were belated and therefore, that they cannot be allowed. 5. As regards the reasons of the Court on the second amendment sought, namely to implead certain additional parties as defendants therein is concerned, Smt.Anusree B. submitted that the approach of the Court is extremely technical in nature since even under Order I Rule 10(2) of the CPC, it is for it to implead any person who it feels is necessary for the purpose of effective adjudication of the suit. She thus prayed that the impugned order be set aside and the interim application for amendments be allowed. 6. In response to the afore contentions, Sri.P.A.Harish, learned counsel for respondents 6 and 8, asserted that the attempt of the petitioner/1[st] plaintiff is to protract the suit and that his intention is to ensure that it is never disposed of finally. He says that this is evident from the fact that after the suit had been once tried, he had moved an application for amendment, which had been allowed in spite of the opposition of his clients and of the other defendants; and that a further trial had been then necessitated, after additional pleadings had been incorporated. He says that, thereafter, the suit was listed OP(C).No.908 OF 2018 6 for hearing, when the present application has been filed, which, according to him, smacks of mala fides, with the confutative intention of the petitioner writ large on such attempt. 7. Sri.P.A.Harish explained that this is because, as has been recorded in Ext.P5 order, the first prayer in the application was to amend the plaint and to bring an additional prayer therein for cancellation of Exts.B1, B2, B4, B57, B58, B60 and B61, which had been earlier produced by the 7[th] defendant at the time when his written statement had been filed in consonance with Order XIII Rule 1 of the CPC. He says that no amendment seeking an additional prayer for cancellation of these documents had been sought for by the petitioner even at the time when the first application for amendment had been allowed and that this clearly shows his attempt is to delay the disposal of the suit. He continued to submit that, as regards the third amendment to the plaint sought for by the petitioner is concerned, it has relation to Ext.B87, which had been produced by the 8[th] defendant along with his additional written statement also as provided under Order XIII Rule 1 of the CPC. He says that this additional written statement had been necessitated consequent to the OP(C).No.908 OF 2018 7 amendment allowed by the Court earlier and therefore, when no prayer against the said document had been made by the petitioner even at the time when the subsequent trial had been completed, the Trial Court could have done nothing more than to have rejected this request, finding it to be extremely belated and mischievous. 8. As an additional contention, Sri.P.A.Harish says that even though it is not so specifically stated in Ext.P5 order, the Trial Court could not have allowed this amendment because by doing so, the principles of laws of limitation would have been attracted, since what is now being sought by the petitioner through the amendments, is to challenge documents several years after they were executed. He says, therefore, that this Court must take judicial notice of this fact also while considering the merits of the contentions of the petitioner. 9. Finally, as regards the second prayer in the I.A. is concerned, Sri.P.A.Harish says that the Trial Court was completely without error in having rejected the prayer for impleading of additional parties since this could have been done only in the manner as provided under Order I Rule 10 of the CPC. OP(C).No.908 OF 2018 8 10. Sri.Jamaludheen, learned counsel for the 7[th] respondent, while adopting most of the submissions of Sri.P.A.Harish, supplemented it by saying that the amendments now sought - particularly amendments 1 and 3 and the consequential amendment No.4 in the application of the petitioner - are wholly unsustainable, since the prayer to have the documents in question set aside have been made by the petitioner much beyond the period of limitation and axiomatically must be construed to have been abandoned by him at the relevant time. He asserts that, thus, the attempt of the petitioner is certainly to revive a claim which he had voluntarily abandoned long ago, by amending the plaint, since he is aware that such amendments, if allowed, will relate back to the date of the suit. He also thus prayed that this Original Petition be dismissed. 11. Smt.M.Shajna, learned counsel appearing for respondents 4 and 5, affirmed the afore submissions of Sri.P.A.Harish and Sri.Jamaludheen, adding that the Trial Court cannot be found to be in error in having issued the impugned order because the petitioner has not even stated why the amendments were sought so belatedly and that the affidavit in support of the same is conspicuously silent in this regard. She OP(C).No.908 OF 2018 9 says that, therefore, even under the ambit of Order VI Rule 17 of the CPC, the Trial Court could have done nothing other than to have dismissed the application for amendment. 12. I have examined the the impugned order and have also evaluated the afore submissions made before me by the learned counsel. 13. I must say that I cannot find the order of the Trial Court, namely Ext.P5, be in substantial error, since the reasons stated therein are certainly within the confines of Order VI Rule 17 of the CPC. The fact that the amendments sought for by the petitioner appear to be made much after the first opportunity is without contest; but his contention, as voiced through his counsel Smt.Anusree B., is that the Court ought to have considered the question of necessity of the amendments from the touchstone of proper adjudication of the real questions in controversy between the parties. 14. When I go through the impugned order, it is without doubt, as is also conceded, that the present application is the second one seeking amendment of the plaints; while the first one, namely I.A.No.169/2018, had been allowed by the Trial Court. Even at the time the first application was considered, OP(C).No.908 OF 2018 10 the suit had been tried already, but the Trial Court very fairly allowed it and conceded one more opportunity to all parties to file their additional pleadings; and subsequently, the suit was taken to trial again and it is without dispute that such process is also now complete. It is at the stage of final hearing of the suit that I.A.No.585/2018 had been filed by the petitioner seeking the amendments. 15. In such context, it is irrefutable that the Trial Court cannot be found to be totally in error in having rejected the application for the reasons stated in the impugned order. 16. That said, however, there is one issue that persuades me in favour of the petitioner, which is that the Trial Court has not considered the relevancy of the amendments or the contentions now raised by the learned counsel for the defendants before me. This is crucial because the defendants have a specific case that through the proposed amendments, the nature of the suit is attempted to be changed and that the prayers sought are an attempt to get over the rigour of limitation and to revive and abandon claim. These aspects have not been touched upon by the Trial Court but has gone ahead to dismiss the I.A. solely for the reason that they are OP(C).No.908 OF 2018 11 belated, taking strength from the proviso to Order VI Rule 17. 17. I am, therefore, of the view that the Trial Court ought to have considered other aspects also, instead of dismissing the application merely on the ground of it being belated; though I must say that reasoning of the Court on that issue cannot be found to suffer from any vitiation. Even so, for substantial justice to be obtained to both sides, I am certain that the Trial Court should consider all the aspects rather than have merely dismissed the application on the ground of it being belated since if, for any reason, it is to find that the amendments are crucial for the purpose of determining the real questions in controversy between the parties, then certainly, even when an application is belated under the proviso to Order VI Rule 17, it can be allowed, as has been declared by this Court in several judgments including **Gopinathan Pillai v. Sumathykutty Amma** [2015 (4) KLT 795] and **Lakshmi & others v. Yatheendradas and others** [FAO(RO) No.43/2018]. This is more so because this Court has already declared the law in the afore judgments that even amendments at the appellate stage are permissible, provided the parameters of Order VI Rule 17 are attracted. Of course, this will be subject to the pleadings on record, as also the OP(C).No.908 OF 2018 12 submissions made by the parties. 18. The above being so concluded, I must, however, say that the reasoning of the Trial Court with respect to the second amendment to the application - namely, to implead certain additional persons as defendants - obtains my full imprimatur since, as rightly stated in the impugned order, such an attempt could have been made by the petitioner only by making an appropriate application under Order I Rules 9 and 10 of the CPC. This is inevitable because even the Court has the power to suo motu implead parties, if it is found necessary for the effective adjudication of the suit. I, therefore, cannot disturb those findings of the Trial Court, though it may be available to the petitioner to make appropriate applications for such purpose which, the Court, will then have to consider in terms of law. In the afore circumstances and for the afore reasons, I allow this original petition in part and set aside the impugned order, except as regards the second prayer for amendments therein; with a consequential direction to the Trial Court to reconsider I.A.No.585/2018 on the amendments shown therein as 1, 3 and 4, after affording necessary opportunities to both OP(C).No.908 OF 2018 13 sides and after adverting to all their contentions including those which are recorded in this judgment. I make it clear that I have not found either in favour or against the petitioner as regards the amendments sought in I.A.No.585/2018 on its merits except with respect to the second amendment therein; and it will, therefore, be up to the Trial Court to take a decision on it, including by allowing it or rejecting it, as it may please in terms of law and following due procedure. The afore exercise shall be completed by the Trial Court within a period of two months from the date of receipt of a copy of this judgment, for which purpose, I direct the parties to mark appearance before it on 17.07.2020. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** Stu OP(C).No.908 OF 2018 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 DATED 23.06.2015 TRUE COPY OF THE PLAINT AS AMENDED IN O.S.NO.76 OF 2015, SUB COURT, KOZHIKODE.** **EXHIBIT P2 DATED 21.01.2016 TRUE COPY OF THE ORIGINAL WRITTEN STATEMENT OF DEFENDANT NO.8 IN O.S.NO. 76 OF 2015, SUB COURT, KOZHIKODE.** **EXHIBIT P3 DATED 05.02.2018 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT OF DEFENDANT NO.8 IN O.S.NO. 76 OF 2015, SUB COURT, KOZHIKODE.** **EXHIBIT P4 DATED 14.03.2018, TRUE COPY OF I.A.N.585 OF 2018 IN O.S.NO. 76 OF 2015, SUB COURT, KOZHIKODE.** **EXHIBIT P5 DATED 20.03.2018 THE COPY OF THE ORDER IN I.A. NO. 585 OF 2018 IN O.S.NO. 76/2015, SUB COURT, KOZHIKODE.** **RESPONDENTS' EXHIBITS : NIL** ## **//TRUE COPY//** **P.A TO JUDGE.**