KUNNANCHERI ABOOBACKER KOYA v SULAIKA and KALLARAKALATTUMMAL ABDUL HAMEED

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 26TH DAY OF AUGUST 2014/4TH BHADRA, 1936** ## **WP(C).No. 26041 of 2010 (O)** **----------------------------** **IA 1404/2010 IN OS 15/2007 of SUB COURT, TIRUR** **PETITIONER(S):** **--------------------------** **KUNNANCHERI ABOOBACKER KOYA, S/O.MOHAMMED, KARUMARAKKAD AMSOM DESOM KARUMARAKKAD POST, ERANAD TALUK, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.JAMSHEED HAFIZ** **RESPONDENT(S):** - **----------------------------** **1. SULAIKA, D/O.KARUPPAMAKKANTEKATH ABDURAHMAN HAJI, PANNIYANKARA AMSOM DESOM KALLAYI POST, PIN-673003, KOZHIKODE TALUK.** **2. KALLARAKALATTUMMAL ABDUL HAMEED, S/O.ABOOBACKER HAJI, OLAVATTOOR AMSOM DESOM ERANAD TALUK, PIN-673638, MALAPPURAM DISTRICT.** **R2 BY ADV. SRI.K.RAMACHANDRAN R2 BY ADV. SRI.S.SREEDEV** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).26041/10-O ## **APPENDIX** ## **PETITIONERS' EXHIBITS:-** EXT.P1:TRUE COPY OF THE PLAINT IN OS 15/07 BEFORE THE SUB COURT, TIRUR, DT. 15-1-07 EXT.P2:TRUE COPY OF THE APPLICATION FOR AMENDMENT OF THE PLAINT, IA. 1404/10 IN OS.15/07 BEFORE THE SUB COURT, TIRUR, DTD.16-3-10 EXT.P3:TRUE COPY OF THE COUNTER TO THE IA. 1404/10 IN OA. 15/07 BEFORE THE SUB COURT, TIRUR, DT.25-5-10 EXT.P4:TRUE COPY OF THE ORDER IN IA.141/10 IN OS. 15/07 BEFORE THE SUB COURT, TIRUR, DT. 19-6-10 ## **RESPONDENTS' EXHIBITS:-** _//TRUE COPY//_ _P.A. TO JUDGE_ _**OKB/-**_ ## **K.HARILAL, J.** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** ## **W.P.(C). No.26041 of 2010** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 26[th] day of August, 2014 ## **JUDGMENT** The petitioner is the plaintiff and the respondents are the defendants in O.S.No.15/2007 on the files of the Sub Court, Tirur. The suit was one for a declaration that the 1[st] defendant has not got any title or possession over the plaint schedule property as per Document No.2996/85 and that the property exclusively belonged to the plaintiff and for a consequential injunction. The 1[st] defendant filed a written statement denying the contention. Thereafter, the plaintiff filed I.A.No.1404/10 under Order VI Rule 17 of the Code of Civil Procedure seeking permission to amend the plaint incorporating that he was a man of unsound mind while he was serving in the military service. But, the said fact was not disclosed to his lawyer at the time of setting up pleadings in the plaint. 2. The defendants filed an objection contending that the amendment cannot be allowed as the same would introduce a _**WP(C).26041/10-O**_ **:2:** new case and the basic structure of the suit will be altered, if the amendment is allowed. After considering the rival contentions, the court below rejected the application for amendment on a finding that if the amendment is allowed, the matters sought to be incorporated by way of amendment would alter the basic structure of the suit. The legality and propriety of the said finding are under challenge in this writ petition. 3. In the plaint, it is the case of the plaintiff that the 1[st] defendant has not got any title to or possession over the plaint schedule property as per document No.2996/85 and that the property exclusively belonged to the plaintiff. He admitted that he executed a gift deed No.2996/85 in favour of the 1[st] defendant. But his explanation was that at the time of execution of the said document, he was running a vegetable business which ended in heavy loss and in connection with the said business, he had to borrow money from some persons and had to hand over pro notes also to them. But, subsequently, he got a legal advise that it would be better if the property is registered in the name of the other persons in order to defeat the creditors. In short, gift deed No.2996/85 was executed with _**WP(C).26041/10-O**_ **:3:** an intention to defeat his creditors. 4. The application for amendment is filed stating that at the time of execution of the document No.2996/85, he was undergoing treatment for mental illness. He was discharged from military service because of his mental ill-health and at that time he was residing with the 1[st] defendant as husband and wife. It is also contended that at the time of execution of document No.1319/97, wherein he stood as a witness, he had been there at the office of the Sub Registrar and it was at that time that one Ali Akbar contacted him and requested to sign as a witness to the document. It was in the said context he signed the document No.1319/97 as a witness and later he came to know that it was a document as per which the 1[st] defendant transferred the property to the 2[nd] defendant. 5. Order 6 Rule17 deals with the amendment of pleadings. It provides that when the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner or to such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the _**WP(C).26041/10-O**_ **:4:** parties. A proviso is added by way of amendment by Act 22 of 2002 with effect from 1-7-2002 and. as per the proviso. no application for amendment shall be allowed after the trial is commenced, unless the Court comes to the conclusion that instead of due diligence the party could not have raised the matter before the commencement of trial. As rightly held by the court below, the settled legal position is that amendments are to be allowed where the amendment sought to be incorporated satisfies two conditions, viz; (1) the matters sought to be incorporated must be necessary for the purpose of determining the real question in controversy between the parties and 2) It shall not cause any kind of prejudice to the other party. Coming to the facts of the instant case, it is seen that the suit was filed for a declaration that the 1[st] defendant has neither right nor possession over the plaint schedule property by virtue of Document No.2996/85 and the property absolutely belongs to the plaintiff. 6. Going by the pleadings, it could be seen that the sole reason stated for executing such a document in favour of the 1[st] defendant is that the said document was executed with an intent _**WP(C).26041/10-O**_ **:5:** to defeat the creditors. In short, the document was executed with sound mind with an intent to serve the purpose which had been nursing in his mind. That is for nothing other than to defeat his creditors. But, subsequently, in the matters sought to be incorporated by way of amendment, he wants to plead that the said document happened to be executed because of his unsoundness of mind and he has not disclosed the said fact to his lawyer at the time of setting his pleadings. I am of the opinion that the pleading sought to be incorporated by way of amendment is apparently opposed to the earlier pleadings and both are mutually opposed and destructive. However, the matters sought to be incorporated by way of amendment cannot be treated as one necessary for the purpose of determining the real question in controversy already existing in the pleadings and not for new pleading sought to be incorporated. 7. In **Thomas v. Chacko (1998 (2) KLT SN 36)** , this Court held that the pleadings sought to be incorporated by way of amendment can be allowed if the amendment is not a new plea or inconsistent with the earlier stand and it does not alter the nature of the suit. But, here, the plaintiff wants to substitute _**WP(C).26041/10-O**_ **:6:** a new pleading instead of his earlier pleadings. In this analysis, I concur with the finding of the court below that the basic structure of the pleadings in the plaint will be altered by way of amendment, if the same is allowed. Besides, since the written statement had already been filed, a subsequent amendment will cause prejudice to the opposite party also. There is no illegality or impropriety in the order under challenge. I do not find any kind of perversity also in the appreciation of facts as well as legal position. This writ petition is dismissed accordingly. Sd/- **(** _**K.HARILAL, JUDGE)**_ okb.