Mini Aged 34 Years Malayude Thekkethil v. Suresh, Vasanti and Koshy John Anjilivilayil Lijo Villa

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 17TH DAY OF JANUARY 2013/27TH POUSHA 1934** ## **OP(C).NO. 128 OF 2013 (O)** ## **----------------------------------I.A. NO.2214 OF 2012 IN O.S. NO.24 OF 1997 MUNSIFF'S COURT, MAVELIKKARA** **PETITIONER(S)/PLAINTIFF :** **---------------------------------------** **MINI AGED 34 YEARS MALAYUDE THEKKETHIL,CHERUMUGHA MURI NOORANAD VILLAGE.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.MANU SEBASTIAN** ## **RESPONDENT(S)/ADDL.DEFENDANTS :** **--------------------------------------------------------** ## **1. SURESH** **KEEPPALLIL VEEDU,CHERUMUGHA MURI,NOORANADU VILLAGE PIN-690 504.** ## **2. VASANTHI** **KEEPPALLIL VEEDU,CHERUMUGHA MURI,NOORANADU VILLAGE PIN-690 504.** **3. KOSHY JOHN ANJILIVILAYIL LIJO VILLA,CHERUMUGHA NOORANADU VILLAGE,PIN-690 504.** **BY ADV. SRI.RASHEED C.NOORANAD ) BY ADV. SMT.ANITHA M.N. (EKM) )R3** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P(C) NO.128 OF 2013** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **P1 : COPY OF PLAINT IN OS NO.24/07 OF MUNSIFF COURT, MAVELIKKARA.** **P2 : COPY OF WRITTEN STATEMENT IN OS 24/97 OF MUNSIFF COURT, MAVELIKKARA.** **P3 : COPY OF JUDGMENT DTD.31.7.2010 IN AS NO.263/04.** **P4 : COPY OF COMMISSION REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN OS NO.24/97.** **P5 : COPY OF IA NO.2214/12 IN OS 24/97 SEEKING LEVE TO AMEND THE PLAINT.** **P6 : COPY OF OBJECTION FILED BY THE 4TH DEFENDANT TO IA NO.2214/12 IN OS 24/97.** **P7 : COPY OF APPLICATION DTD.20.11.2012 SEEKING TO REMOVE THE CASE FROM THE LIST.** **P8 : COPY OF ORDER DTD.10.12.2012 IN IA NO.2214/12 IN OS NO.24/1997 ON THE FILE OF MUNSIFF COURT, MAVELIKKARA.** **RESPONDENT(S)' EXHIBITS:** **NIL** ## **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No. 128 of 2013 ==================================== Dated this the 17[th] day of January, 2013** ## **J U D G M E N T** Notice to the 1[st] respondent is returned with the endorsement that the house is closed. Since it is seen from paragraph 3 of the order under challenge that only respondents 2 and 3/defendants 4 and 5 filed objection to the application for amendment, I do not find it necessary to repeat notice to the 1[st] respondent. Respondents 2 and 3 are served. The 3[rd] respondent has appeared through counsel. 2. Challenge is to Ext.P8, order dated 10.12.2012 on I.A. No.2214 of 2012 in O.S. No.24 of 1997 of the Munsiff's Court, Mavelikkara. 3. Petitioner filed the suit for declaration of the title claimed by her over item No.1 of the plaint schedule and for recovery of possession of item No.2, described as one cent towards western portion of item No.1. Respondents and other defendants resisted the suit on various grounds. The suit was dismissed against which petitioner filed appeal. The appeal was allowed by way of remand. After remand, petitioner took steps to **O.P(C) No.128 of 2013** -: 2 :- identify the property. The Advocate Commissioner identified the property and submitted report and plan. Then it was reveled that the entire item No.1 is in the possession of the respondents and other defendants. Petitioner filed I.A. No.2214 of 2012 to amend the plaint and incorporate certain additional reliefs. That application was opposed by respondents 2 and 3 on the ground that the additional reliefs sought to be incorporated by amendment are barred by limitation as on the date of application for amendment and that if the amendment is allowed, it will alter nature and character of the suit. 4. Learned Munsiff noticed that the cause of action pleaded in I.A. No.2214 of 2012 is on 06.01.1997 but the application for amendment was preferred after 20 years therefrom and hence the reliefs sought as per amendment are barred by limitation. Learned Munsiff also found fault with not complying with the proviso to Rule 17 of Order VI of the Code of Civil Procedure Code (for short, “the Code”). 5. Learned counsel for petitioner submits that in the nature of amendment prayed for, question of limitation does not arise. In the plaint as originally filed, petitioner had prayed for a declaration of her title over item No.1 and hence question of ## **O.P(C) No.128 of 2013** ## -: 3 :- title of petitioner being lost by adverse possession on the date of the suit or date of application for amendment does not arise. Hence the prayer for recovery of possession is also not barred by limitation. A further contention advanced is that at any rate it was sufficient that the question whether the amendment would relate back to the date of suit was left for a decision after trial of the suit. 6. So far as the proviso to Rule 17 of Order VI of the Code is concerned, it is contended that it was only when the Advocate Commissioner filed the report that petitioner learned about the rest of item No.1 being in the possession of the 2[nd] respondent and that in spite of exercise of due diligence, petitioner was not able to learn about that before. 7. Learned counsel for the 3[rd] respondent contended that the third respondent has purchased 1 Are from the 2[nd] respondent who is one of legal representatives of deceased defendants 1 and 2. 8. So far as the issue regarding limitation is concerned I am inclined to think that it was not necessary for the learned Munsiff to have prejudged that question while deciding I.A. No.2214 of 2012. The question whether amendment if allowed **O.P(C) No.128 of 2013** ## -: 4 :- would relate back to the date of suit or would take effect only from the date of application could be decided by the trial court while deciding the suit. 9. So far as compliance of proviso to Rule 17 of Order VI is concerned, the suit was filed in the year, 1997 while the proviso to Rule 17 of Order VI was incorporated with effect from ## 1.7.202. The Supreme Court in **State Bank of Hyderabad** **v. Town Municipal Council** ([2007 [1] SCC 765 - paragraphs 7 and 8) has held that in a suit of the year, 1998 the proviso to Rule 17 of Order VI of the Code shall not apply. The proviso to Rule 17 of Order VI of the Code has no application in this case since the suit is filed in the year, 1997. Even otherwise, as held by this Court in **Eapen Antony v. Joseph** (2009 [2] KLT 149), it is possible that in spite of exercise of due diligence a party or counsel may not come across the deficiency in the plaint. In this case petitioner has a case that it is after the Advocate Commissioner filed report that he learned that the entire 1 cent is in the possession of the 2[nd] respondent. 10. The contention that the amendment if allowed would change nature and character of the suit cannot be accepted. For, the crux of the plea sought to be incorporated by ## **O.P(C) No.128 of 2013** ## -: 5 :- amendment is recovery of possession of the entire item No.1. That will not change the nature and character of the suit. Hence I am inclined to think that the learned Munsiff ought to have allowed I.A. No.2214 of 2012. Since the amendment being allowed is substantial, the trial court shall consider whether fresh summons is required to be issued on the amended plaint to any of the defendants remaining absent. Resultantly, the Original Petition is allowed as under: (i) Exhibit P8, order on I.A.No.2214 of 2012 in O.S. No.24 of 1997 of the Munsiff's Court, Mavelikkara is set aside. (ii) I.A. No.2214 of 2012 is allowed with the direction that the question whether the amendment would relate back to the date of suit or will take effect only on the date of filing I.A. No.2214 of 2012 shall be decided by the trial court at the time of final hearing having regard to the facts pleaded and the law on the point. (iii) Petitioner shall carry out the amendment within two weeks from this day. ## **O.P(C) No.128 of 2013** **==> picture [41 x 10] intentionally omitted <==** (iv) On such amendment being carried out the defendants shall have opportunity to file additional written statement in answer to the amended plaint. ## **THOMAS P. JOSEPH, JUDGE.** vsv