Kunhoth Kunhammed v. Ragavan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 23RD DAY OF JANUARY 2018 / 3RD MAGHA, 1939** **OP(C).No. 3538 of 2017** **O.S. NO.90/2015 OF THE MUNSIFF COURT, PERAMBRA** ## **PETITIONER/PETITIONER/PLAINTIFF:** **KUNHOTH KUNHAMMED, S/O CHOKRU, AGED 58 YEARS, AGRICULTURE, KALLURA HOUSE, CHENOLI AMSOM, VALOOR DESOM, KOYILANDY TALUK** **BY ADVS.SRI.BINOY VASUDEVAN SRI.M.T.THOMAS** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **RAGHAVAN, S/O KANNAN, AGED 62 YEARS, AGRICULTURE, NARANATH, NOCHAD AMSOM, VELLIYOOR DESOM, KOYILANDY TALUK, 673614.** **BY ADVS. SRI.P.V.KUNHIKRISHNAN SRI.P.V.ANOOP** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **EL** **OP(C).No. 3538 of 2017 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE PLAIN IN OS.NO. 90/2015 ON THE FILE OF THE COURT OF MUNSIFF AT PERAMBRA EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO. 90/2015 ON THE FILE OF THE COURT OF MUNSIFF AT PERAMBRA EXHIBIT P3 TRUE COPY OF THE CROSS EXAMINATION OF THE PLAINTIFF EXHIBIT P4 TRUE COPY OF THE IA.NO. 826/2017 IN O.S.NO.90/2015 ON THE FILE OF THE COURT OF THE MUNSIFF, PERAMBRA EXHIBIT P5 TRUE COPY OF THE COMMON ORDER IN I.A.NO.825 AND 826 OF 2017 IN OS.NO. 90/2015 ON THE FILE OF THE COURT OF MUNSIFF AT PERAMBRA OF 2013** ## **RESPONDENT(S)' EXHIBITS** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ALEXANDER THOMAS, J.** -------------------------------------------------OP(C) No. 3538 of 2017 -------------------------------------------------Dated this the 23[rd] day of January, 2018 ## **J U D G M E N T** The order under challenge is Ext.P5 order dated 14.11.2017, whereby the applications filed by the petitioner/plaintiff for amendment of the pleadings in the plaint schedule filed as per IA No.826/2017 and also the application filed as per IA No.825/2017 for reopening the evidence had been rejected by the court below. 2. Heard Sri.Binoy Vasudevan, the learned counsel for the petitioner/plaintiff and Sri.P.V.Kunhikrishnan, the learned counsel for the respondent/defendant. 3. The petitioner herein is the plaintiff in OS No.90/2015 on the file of the Munsiff's Court, Perambra. The suit is for permanent prohibitory injunction, alleging that the defendant is trying to trespass into the plaint schedule property and also attempting to widen the pathway, which is having a width of 2.25 meters. The defendant resisted the suit raising several contentions. The plaintiff admitted that he had sold 22 cents of land, which was admitted in the plaint, and he also preferred an application seeking to amend the schedule. The trial court dismissed both applications for reopening the evidence and for OP(C) No. 3538 of 2017 **==> picture [20 x 8] intentionally omitted <==** amending the plaint schedule as per Ext.P5 order for the delay. 4. It is not in dispute that before the filing of the applications for reopening the evidence and for amending the schedule of the claim, evidence has been closed in the matter and the application for amendment as per Ext.P4 (IA No.826/2017) has been filed mainly to amend the plaint schedule. It is stated that the northern boundary of the plaint schedule property is shown as item No.1 in the 'karar' and it is stated that it is so described as it is shown so in the title deed of the plaintiff. It is further stated that even before the institution of the present suit, the plaintiff had, as a matter of fact, assigned 22 cents of land to one Smt.Sabira from the northern side of the plaint schedule property. So, the northern boundary of the plaint schedule property is the property in the possession of Smt.Sabira and not the one as described in the plaint schedule. This was sought to be amended as per Ext.P4 application. 5. The trial court has dismissed the said plea for amendment as well as the consequential application for reopening of evidence mainly on the ground that it is not allowable in view of the bar envisaged as per the proviso to Order VI Rule 17 of the Code of Civil Procedure. The operative portion of Order VI Rule 17 CPC reads as follows; > “17. Amendment of pleadings.- The Court may at any stage 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 OP(C) No. 3538 of 2017 ..3.. 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.” 6. It is now well established that the court may, at any stage of the proceedings, allow either party to alter or amend the 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. However, this is always subject to the rider that serious prejudice or injustice shall not be caused to the other side by allowing such plea for amendment. This position is reflected in the operative portion of Order VI Rule 17, which has undergone change after the introduction of the proviso thereto as per the Amendment Act 22/2002. As per the said proviso, 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. The rulings as reported in 2009 (2) SCC 409 paragraph 11 [ **Vidyabai & Others** v. **Padmalatha & another** ] and 2006 (6) SCC 498, paragraph 17 [ **Baldev Singh & others** v. **Manohar Singh & another** ] etc. provides that the bar envisaged as per the proviso to Order VI Rule 17 of the Code of Civil OP(C) No. 3538 of 2017 **==> picture [20 x 8] intentionally omitted <==** Procedure would play only after the stage of commencement of evidence in the case. In the instant case, it is not in dispute that the evidence had been completed at the time when Ext.P4 application for amendment was moved by the plaintiff. Then, the issue is as to whether the petitioner/plaintiff is entitled to get the benefit of the exception as envisaged in the said proviso. If the petitioner/plaintiff is able to establish that in spite of due diligence he could not have raised the matter before the commencement of trial, then, certainly, his plea for amendment could be ordered to be reconsidered by this Court. The concept of due diligence, as envisaged in the said proviso to Order VI Rule 17, has been elaborately considered by the apex court in **J. Samuel & others** v. **Gattu Mahesh & Others** [2012 (2) SCC 300]. It is profitable to refer to paragraphs 15 to 25 of the said judgment of the apex court, which reads as follows; “15. In this legal background, we have to once again recapitulate the factual details. In the case on hand, Suit OS No. 9 of 2004 after prolonged trial came to an end in September 2010. The application for amendment under Order 6 Rule 17 CPC was filed on 24-9-2010, that is, after the arguments were concluded on 22-9-2010 and the matter was posted for judgment on 4-10-2010. We have already mentioned that Section 16(c) of the Specific Relief Act contemplates that specific averments have to be made in the plaint that he has performed and has always been willing to perform the essential terms of the Act (sic contract) which have to be performed by him. This is an essential ingredient of Section 16(c) and the form prescribes for the due performance. The proviso inserted in Rule 17 clearly states that no amendment shall be allowed after the trial has commenced except when 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. 16. As stated earlier, in the present case, the amendment application itself was filed only on 24-9-2010 after the arguments were completed and the matter was posted for judgment on 4-10-2010. On proper interpretation OP(C) No. 3538 of 2017 ..5.. of the proviso to Rule 17 of Order 6, the party has to satisfy the court that it could not have discovered that ground which was pleaded by amendment, in spite of due diligence. No doubt, Rule 17 confers power on the court to amend the pleadings at any stage of the proceedings. However, the proviso restricts that power once the trial has commenced. Unless the court satisfies (sic itself) that there is a reasonable cause for allowing the amendment, normally the court has to reject such a request. 17. An argument was advanced that since in the legal notice sent before the filing of the suit, there is reference to readiness and willingness and the plaintiff has also led in evidence, nothing precluded the court from entertaining the said application which we are unable to accept in the light of Section 16(c) of the Specific Relief Act as well as proviso to Order 6 Rule 17. The only reason stated so in the form of an affidavit is omission by “type mistake”. Admittedly, it is not an omission to mention a word or an arithmetical number. The omission is with reference to specific plea which is mandated in terms of Section 16(c) of the Specific Relief Act. 18. 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.” (emphasis supplied) 19. 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. 20. A party requesting a relief stemming out of a claim is required to exercise due diligence and it 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. 21. In the given facts, there is a clear lack of “due diligence” and the mistake committed certainly does not come within the preview of a typographical error. The term “typographical error” is defined as a OP(C) No. 3538 of 2017 ..6.. mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore, the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code. 22. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip. 23. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order 6 Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order 6 Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other’s case. It also helps checking the delays in filing the applications. [Vide Aniglase Yohannan v. Ramlatha1, Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N.2, Chander Kanta Bansal v. Rajinder Singh Anand3, Rajkumar Gurawara v. S.K. Sarwagi and Co. (P) Ltd.4, Vidyabai v. Padmalatha5 and Man Kaur v. Hartar Singh Sangha6.] 24. In the light of the above discussion, we are in entire agreement with the conclusion arrived at by the trial court and unable to accept the reasoning of the High Court. Accordingly, the order dated 8-2-2011 passed in Civil Revision Petition No. 5162 is set aside. 25. The civil appeal is allowed with no order as to costs.” 7. In the instant case, it is not in dispute that even before the institution of the suit, the plaintiff had sold 22 cents of property from the northern side of the plaint schedule property to one Smt.Sabira. Therefore, in spite of this, the northern boundary of the plaint schedule property was wrongly described based on the descriptions in OP(C) No. 3538 of 2017 **==> picture [20 x 8] intentionally omitted <==** the original title deed, without adverting to the subsequent sale made by none other than the plaintiff. Since this fact was known to the plaintiff even before the institution of the suit, it cannot be said that the petitioner can make out a case on the basis of the exception as envisaged in the proviso to Order VI Rule 17. That apart, from a reading of Ext.P4 application, it is seen that no proper factual details have been detailed therein to aid the plaintiff in his attempt to establish the due diligence conceived in the proviso to Order VI Rule 17. For all these reasons, the trial court cannot be faulted with in any manner for having passed the impugned order, refusing the plea for amendment and the consequential refusal to reopen the evidence. Accordingly, it is ordered that the Original Petition (Civil) is devoid of any merit. The Original Petition (Civil) stands dismissed. Sd/- **ALEXANDER THOMAS JUDGE** bka/