Mani alias Mani Varkey v. Najeeb

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 10[TH] DAY OF MARCH 2022 / 19TH PHALGUNA, 1943** **OP(C) NO. 2367 OF 2019** **ORDER DATED 6.8.2019 IN I.A.NO.2599 OF 2019 IN O.S NO.23/2007 ON THE FILE OF THE COURT OF MUNSIFF, MUVATTUPUZHA** ## **PETITIONER/RESPONDENT/DEFENDANT:** **MANI ALIAS MANI VARKEY, S/O. VARKEY, CHAKKIYATH HOUSE, KUTHUKUZHY P.O, KOTHAMANGALAM, ERNAKULAM-686 691 BY ADVS. T.M.CHANDRAN SRI.S.SUJITH** ## **RESPONDENT/PETITIONER/PLAINTIFF:** **NAJEEB, S/O. SAIDU MUHAMMED, PUNNAKKOTTAYIL, KOTHAMANGALAM, VARAPETTY P.O, ERNAKULAM-686 691** **BY ADV SRI.PEEYUS A.KOTTAM** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON 10.03.2022 DELIVERED THE FOLLOWING:** O.P(C).No.2367/2019 2 ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C). No.2367 of 2019_ ================================ _Dated this the 10[th] day of March, 2022_ ## _**J U D G M E N T**_ The petitioner herein is the defendant in O.S.No.23/2007 on the file of Munsiff Court, Muvattupuzha. He has filed this Original Petition under Article 227 of the Constitution of India challenging the order in I.A.No.2599/2019 dated 06.08.2019 in the above Suit. The respondent herein is the sole plaintiff in the above Suit. 2. Heard both sides in detail. 3. In this case, once Suit was dismissed on merits, thereafter A.S.No.17/2009 was filed before the Sub Judge, Muvattupuzha. The Sub Judge, after re-appreciating the evidence, set aside the judgment and remanded the matter to the lower court O.P(C).No.2367/2019 3 for fresh disposal in accordance with law, giving opportunity to both sides for adducing evidence. It was thereafter the plaintiff filed I.A.No.2599/2019 and sought the relief of amendment of the plaint. The defendant filed detailed objection contending, _inter alia_ , that the amendment would alter the entire nature of the Suit. The specific contention raised was that originally the Suit was one for fixation of western boundary of the plaint schedule property and for permanent prohibitory injunction. By way of amendment, the plaintiff wanted to delete the above prayers and incorporate reliefs for recovery of possession and mandatory injunction. Further it was contended that the reliefs pressed for in consequence of the proposed amendments were barred by limitation. 4. The learned counsel for the petitioner submitted that the amendment sought for is absolutely necessary to address the grievane of the plaintiff' and decide the matter in dispute, since it was reported by the Commissioner that the property where the O.P(C).No.2367/2019 4 plaintiff' asserts title is now in possession of the defendant. Therefore, recovery of possession and mandatory injunction required to be incorporated in the Suit. Thus the learned Munsiff rightly allowed the petition to address the matter in issue and to avoid multiplication of the proceedings. 5. Whereas the learned counsel for the respondent reiterated the contentions raised before the court below and submitted that the amendment could not be allowed for any reason. A detailed argument note also has been filed. Para.5 to 10 of the argument note are extracted hereunder: 5. _The suit filed by the respondent/plaintiff was dismissed by the trial court by its judgment dated 03.09.2009. The plaintiff filed appeal as A.S.17/2009 before the Hon'ble Sub Court, Muvattupuzha. The learned sub Judge as per the judgment dated 26.09.2012 allowed the appeal and thereby set aside the judgment and decree of the trial court and case was remanded back for fresh disposal after giving opportunity to both sides for adducing evidence. The commission report was also set aside. In pursuant to the judgment of remand by the appellate court, Advocate Commissioner and surveyor were appointed by allowing I.A.2480/2008 filed by the_ O.P(C).No.2367/2019 5 _respondent/petitioner to set aside Ext-C2 report and C2(a) plan. In Ext-P5 commission report, the advocate commissioner measured the property on the basis of the respondent/plaintiff title deed bearing No.9706/95 and identify the 2 ½ cents of property owned by this respondent in Sy.1039/4 of Kothamangalam Village and also identified the extent of encroachment where the construction is carried by the petitioner as 46 sq.meters in Sy.1039/4 which is marked as Plot No.4 in Ext-P5._ _6. It is true that the amendment petition filed by the respondent as I.A.192/2009 is dismissed as per Ext-P4 order and since as per the judgment of the appellate court dated 26.09.2012 in A.S.17/2009, the judgment and decree in original suit was set aside and remanded back the suit, for fresh disposal. There is no embargo for filing a fresh application for amendment. The dismissal of I.A.192/2009 is on technical ground highlighting the proviso to Order VI Rule 17 of the CPC which prohibits the amendment after the commencement of the trial. Respondent/plaintiff wants to make his pleading in respect of the extent of proprty which is illegal possessed by the defendant in tune with survey commission report and plan filed on 11.07.2019. Since the plaint schedule property/the property of this respondent is lying contiguously with the property of the petitioner/defendant its extent and boundaries are properly identified only through the survey commission report which is filed on 11.07.2019. That necessitated the respondent/defendant to file I.A.2599/2019 seeking amendment of the plaint and incorporating the prayers on the basis of the_ O.P(C).No.2367/2019 6 _measurement and extent revealed through survey measurement as stated in the commission report and plan submitted before the court on 11.07.2019. Therefore, the learned trial Judge has legally and correctly entered into a finding that the amendment application filed by the respondent/plaintiff is to be allowed and accordingly Ext-P9 order is passed which is under challenging before this Hon'ble Court in the original petition._ _7. I.A.2599/2019 filed by this respondent is challenged by the petitioner on two grounds i.e. (1) the similar prayer was dismissed on merit on earlier occasion. (2) the amendment will change the nature and character of the suit and there is no factual basis for amendment._ _8. As far as first contention raised by the petitioner is concerned, this respondent respectfuly submit that Ext-P4 order was not on merit but that disposal was purely on a technical ground that too on the basis of proviso to Order VI Rule 17 of CPC. Therefore, that contention will not sustain the scrutiny of law._ _9. The second contention raised is that, it will change the nature and character of the suit. The answer for this contention is that the trespass committed by the petitioner/defendant is during the pendency of the suit. If the trespass is committed by the defendant, then the plaintiff has left no other remedy other than to incorporate the prayer for recovery of possession after declaring his title. Therefore, the respondent/plaintiff is compelled to incorporate the prayer for recovery of possession, since the defendant trespassed and dispossess the plaintiff during the pendency of the suit. It is also_ O.P(C).No.2367/2019 7 _pertinent to note that the actual extent of the property which is owned by the petitioner as per his title deed was lying contiguously with the defendant's property. Only after a proper measurement, the property of the plaintiff could be identified and demarcated from the defendant's property. The property was measured and the actual extent of property owned by the petitioner is identified by the Advocate Commissioner only through his report submitted before Court on 11.07.2019 and hence the relief sought for by the plaintiff for declaration of his title and recovery of possession is purely within the realm of t he law governing amendment._ _10. Surprisingly, before this Hon'ble Court, raised a contention that the prayer for declaration of title and recovery of possession, is barred by law of limitation. This respondent respectfuly submit that, the defendant is not admitting the title of the plaintiff on the contra the defendant also claim title over the disputed property. The plaintiff is not claiming adverse possession over the plaint schedule property. Therefore, the only question is that who is having better title over the plaint schedule property, as identified by the advocate commissioner. In effect Article 65 of the Limitation Act will not affect. The Hon'ble Supreme Court in the judgment reported in 2004 (6) SCC 415, 2004 KHC 1297 (See) Pankaj v. Yellappa held that there is no absolute rule that in every case where relief is barred because of limitation, an amendment shall not be allowed. In tune with the Supreme Court judgment, this Hon'ble Court in the judgment reported in 2021 (1) KHC 441 Abraham v. Mathai and others has_ O.P(C).No.2367/2019 8 _held as follows:_ _24. In Pankaja (supra), the Apex Court has observed as follows:_ _“The law in this regard is quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretin in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends upon the factual background of that case._ _25. As noticed earlier, it is an arguable or debatable question whether the alleged removal of soil or excavation of earth in the plaint D schedule property, causing loss of lateral support to the plaint B schedule way, has provided a recurring or continuing cause of action to seek a relief of mandatory injunction. In Pankaja (supra), the Apex Court has held that, when there is an arguable question whether the new relief claimed by the plaintiff by way of amendment of plaint is barred by limitation, the application for amendment can be allowed after saving the question of limitation to be agitated and adjudicated in the trial of the case. This principle_ O.P(C).No.2367/2019 9 _can be made applicable to the facts of the present case and the application for amendment of the plaint can be allowed, of course, subject to payment of costs by the plaintiff to the defendants to compensate the prejudice and hardship that would be caused to them_ _by allowing the amendment. Considering the facts and circumstances of the case and the delay that occurred on the part of the plaintiff in seeking a new relief by way of amendment, I find that the plaintiff has to pay an amount of Rs.10,000/- as costs to the defendants as a condition for allowing the application for amendment of the plaint.”_ 6. Boh sides produced decision reported in [2021 (1) KHC 441], _**Abraham v. Mathai & Ors.**_ In the said decision, it was held by this Court that when new relief claimed by the plaintiff by way of amendment is barred by limitation, application for amendment can be allowed after saving the question of limitation to be agitated in the trial of the case. 7. Another decision of this Court reported in [2021 (5) KHC 740], _**Salim P.M v. Vasudevan Namboothiri & Ors.**_ , also has been placed to contend that categorical or wilful admission made in the pleadings (plaint and written statement) cannot be permitted to O.P(C).No.2367/2019 10 be withdrawn by way of amendment, if such withdrawal would amount to totally displacing the case of the plaintiff' and would cause him irreparable prejudice. 8. After having rightly appraised the arguments, the vital issue to be decided herein is whether the amendment now sought to be incorporated would change the nature of the Suit. 9. On perusal of the amendment sought, it could be gathered that though the earlier prayers were for fixation of boundary and mandatory injunction, those prayers were sought to be deleted and thereafter new prayers sought to be incorporated and the said prayers are for declaration of title over the plaint schedule property and recovery of possession of the same. Another prayer is for mandatory injunction to remove the obstruction. Thus it appears that the plaintiff attempted to incorporate amendments which would vary the very nature of the Suit. Such amendments cannot be allowed and therefore I am of the view that the learned O.P(C).No.2367/2019 11 Munsiff went wrong in allowing the amendment application as per Ext.P9 order and therefore the said order is found to be erroneous and illegal. In view of the matter, I am inclined to set aside the order in I.A.No.2599/2019 dated 06.08.2019. 10. In the result, this Original Petition is allowed. The order impugned shall stand set aside. Registry is directed to forward a copy of this judgment to the learned Munsiff, Muvattupuzha, for information and compliance within 7 days from today. Sd/- ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.2367/2019 12 ## **APPENDIX OF OP(C) 2367/2019** |**PETITIONER EXHIBITS**|| |---|---| |**EXHIBIT P1**|**TRUE COPY OF PLAINT DATED 8.1.2007 IN**| ||**O.S. NO. 23/2007 ON THE FILE OF MUNSIFF**| ||**COURT, MUVATTUPUZHA.**| |**EXHIBIT P2**|**TRUE COPY OF I.A. 254/2008.**| |**EXHIBIT P3**|**TRUE COPY OF PETITION I.A. NO. 192/2009**| ||**DATED 14.1.2009.**| |**EXHIBIT P4**|**TRUE COPY OF ORDER DATED 17.1.2009.**| |**EXHIBIT P5**|**TRUE COPY OF COMMISSION REPORT DATED**| ||**3.7.2019 ALONG WITH PLAN IN I.A. NO.**| ||**2480/2008**| |**EXHIBIT P6**|**TRUE COPY OF OBJECTION DATED 26.7.2019**| ||**FILED BY DEFENDANT.**| |**EXHIBIT P7**|**TRUE COPY OF PETITION I.A. NO. 2599/2019**| ||**DATED 27.7.2019.**| |**EXHIBIT P8**|**TRUE COPY OF OBJECTION DATED 30.07.2019**| ||**FILED BY DEFENDANT.**| |**EXHIBIT P9**|**TRUE COPY OF ORDER DATED 6.8.2019 PASSED**| ||**IN I.A NO. 2599/2019**|