M/S SAFA MILL STORES v. SHABANA K A and others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN` ``` TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 ``` ## `OP(C) NO. 1512 OF 2023` ``` AGAINST THE ORDER DATED 21.06.2023 IN EA NO.124 OF 2023 IN E.A. NO.62 OF 2023 IN E.P.125 OF 2020 PASSED BY THE HONOURABLE MUNSIFF’S COURT, PERUMBAVOOR ``` ## `PETITIONERS/PETITIONERS IN CLAIM PETITION & E.A.:` ``` 1M/S. SAFA MILL STORES ROOM NO. 21/3136 (OLD NO.16/556), M. C ROAD, PERUMBAVOOR, REPRESENTED BY ITS MANAGING PARTNER MOHAMMED JASSIM, AGED 27 YEARS, S/O. MUHAMMED IQBAL, EDAVANAKKADU HOUSE, MALAMURI, PERUMBAVOOR POST, PERUMBAVOOR VILLAGE, ERNAKULAM DISTRICT, PIN - 683542 2MOHAMMED JASSIM AGED 27 YEARS S/O. MUHAMMED IQBAL, EDAVANAKKADU HOUSE, MALAMURI, PERUMBAVOOR POST, PERUMBAVOOR VILLAGE, ERNAKULAM DISTRICT,, PIN - 683542 BY ADVS. DINESH MATHEW J.MURICKEN VINOD S. PILLAI MOHAMMED THAYIB N.M. NAYANA VARGHESE AHAMMAD SACHIN K. RIA VARGHESE ``` ## `RESPONDENT( S )/RESPONDENTS IN CLAIM PETITION & E.A.:` ``` 1SHABANA.K.A. AGED 46 YEARS AGED 46 YEARS, W/O. FIROZ T.M., 25A, EAST WOOD LAYOUT, HARALUR, OFF. SARJAPUR ROAD, BANGALORE, KARNATAKA, PIN - 560102 2RASEENA AGED 44 YEARS D/O. ABDUL KHADAR, KANAPPURAM HOUSE, MALAMURI, RAYAMANGALAM, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683545 3MINI AGED 48 YEARS D/O. ABDUL KHADAR, NATTASSERY HOUSE, FATHIMATH 8, KUMANELLOOR, NATTASSERRY, PERUMBAYALKKADU VILLAGE, KOTTAYAM DISTRICT, PIN - 686006 4MUHAMMED IQBAL ``` ``` O.P.(C.) No.1512 of 2023 ``` 2 ``` AGED 60 YEARS S/O. ABDU RAHIM, EDAVANAKKAD HOUSE, MALAMURI, PERUMBAVOOR P.O., ERNAKULAM DISTRICT, PIN - 683545 5JASMINE AGED 56 YEARS D/O. ABDUL KHADER & W/O. MUHAMMED IQBAL, EDAVANAKKAD HOUSE, MALAMURI, PERUMBAVOOR P.O., ERNAKULAM DISTRICT, PIN - 683545 6SHAJITHA AGED 53 YEARS D/O. ABDUL KHADAR, PARATTU HOUSE, ORUMANIYOOR VILLAGE, CHAVAKKAD, THRISSUR DISTRICT, PIN - 680506 7MUHAMMED YUFFAS AGED 31 YEARS S/O. SHAJITHA, PARATTU HOUSE, ORUMANIYOOR VILLAGE, CHAVAKKAD, THRISSUR DISTRICT, PIN - 680506 BY ADVS. DINESH R.SHENOY JAYADEEP MENON K.V. T.P.RAMESH (THENGUMPILLIL)(K/248/2000) P.KRISHNAPRIYA(K/479/2006) P.ROHIT PREMANANDAN SHENOY(K/000195/2017) SILESH S. PRABHU(K/510/2020) JOMOL PIUS(K/002269/2022) AISWARYA(K/2147/2022) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C.) No.1512 of 2023 ``` 3 ## **C.JAYACHANDRAN, J. -----------------------------------O.P.(C.) No.1512 of 2023 -----------------------------------Dated this the 19[th] day of March, 2024** ## **ORDER** The petitioners herein are the claim petitioners in Ext.P7 claim petition. The petitioners are aggrieved by Ext.P12 order, which dismissed the application for amendment of the claim petition. 2. Heard the learned counsel for the petitioners and respondents. 3. Learned counsel for the petitioners would submit that the amendment sought for vide Ext.P10 was dismissed only harping on the proviso to Order 6, Rule 17, which will not apply to a claim petition filed under Order 21, Rule 99. Learned counsel would submit that Order 6, Rule 17 deals with amendment of ‘pleadings’ and pleadings are defined in Order 6, Rule 1 ``` O.P.(C.) No.1512 of 2023 ``` 4 to mean plaint or written statement only. In the instant case, Ext.P7 is a claim petition under Order 21, Rule 99. Therefore, the same cannot be brought within the ambit of ‘pleadings’ as defined in Order 6, Rule 1. The second submission is based on the definition to Section 2(2) of the Code, wherein that part of the definition of the decree, which includes Section 47, has been omitted by the Amendment Act of the year 1976, wherefore a proceeding under Section 47 and an order passed therein, will not amount to a decree. In this regard, learned counsel would rely on the judgment of a learned Single Judge of this Court in Ellodimalayil Pockan v. Koyiloth Moosa and others [2019 (3) KHC 298]. The impact of deletion of Sub Section 2 of Section 47 is seen discussed therein, in paragraph no.11. Therefore, it is the submission of the learned counsel that determination of any question within the scope of Section 47 of the Code cannot be regarded as a decree, no longer. As regards the amendment of a petition ``` O.P.(C.) No.1512 of 2023 ``` 5 made at the execution stage, learned counsel relied on another decision of the learned Single Judge in Raveendran v. Dandayudan [1987 KHC 365] to contend that, even if Order 6, Rule 17, may not apply in terms, amendment can be sought for under Section 151. On such premise, learned counsel would submit that the dismissal of the amendment application vide Ext.P12, relying on the proviso to Order 6, Rule 17 cannot be sustained. 4. In answer to the above contentions, learned counsel for the respondents would first point out that the instant claim petition is filed under Order 21, Rule 99 and also under Section 47. Referring to Section 47, learned counsel would submit that the said provision is not applicable, inasmuch as, the petitioners herein is not a party to the suit, but a stranger. If Ext.P7 application is to be treated under Order 21, Rule 99, learned counsel would point out that, by virtue of Rule 101, a separate suit is barred and that all questions ``` O.P.(C.) No.1512 of 2023 ``` 6 between the parties to the proceeding and relevant to the adjudication of the application shall be determined by the Court dealing with the application. Learned counsel would submit that an anticipatory obstruction before physical dispossession can also be filed under Order 21, Rule 99. Going by Order 21, Rule 103, the order to be passed in an application under Order 21, Rule 99, or for that matter Rule 98 or 100, is a deemed decree for the purpose of appeal or otherwise. Relying on the judgment of this Court by a learned Single Judge in Ayyappan Pillai v. Raveendranathan [1999 KHC 128], learned counsel would submit that the procedure envisaged in Order 21, Rule 101, is virtually a substitute for a suit, as held in paragraph no.9 in that decision. Learned counsel then invited the attention of this Court to Section 141 of the Code to point out that the procedure in the Code has to be followed in regard to all proceeding in any Court of Civil jurisdiction. Proceedings under Order 21, Rule 99, being a ``` O.P.(C.) No.1512 of 2023 ``` 7 proceeding before a Court of Civil jurisdiction, the procedure contemplated in the Code has to be followed. Therefore, Order 6, Rule 17 will apply, is the submission made by the counsel. 5. On facts, learned counsel would point out that the extent of land over which a claim was made in Ext.P7 claim petition was only two cents, whereas, the claim is sought to be extended to 55.5 cents by virtue of Ext.P10 amendment application. Learned counsel would also point out that the solitary claim which was espoused by the petitioners herein in Ext.P7 claim petition was to the effect that the claim petitioners are the tenants in the building comprised in the above referred two cents, wherefore, they cannot be evicted, except in accordance with the procedure laid down in the Kerala Buildings Lease and Rent Control Act. 6. Having heard the learned counsel appearing on both sides, this Court finds little merit in the Original Petition. It is true that Order 6, Rule 17 deals with the ``` O.P.(C.) No.1512 of 2023 ``` 8 amendment of pleadings and that, pleading is defined under Order 6, Rule 1, to mean plaint or written statement. However, it remains the fact that the instant claim petition vide Ext.P7 is filed by the petitioner, who is a stranger, under by Order 21, Rule 99 as rightly quoted in that application. If that be so, the order to be passed in such an application as stipulated in Order 21, Rule 103, is a decree, or in other words, a deemed decree. By virtue of Section 141, the procedure laid down in the Code is applicable to all proceedings before a Civil Court. Therefore, this Court is not inclined to accept the restricted interpretation sought to be given to the scope of Order 6, Rule 17 by confining it to ‘pleadings’, which means the plaint and written statement alone. For all practical purposes, a petition under Order 21, Rule 58, or for that matter, a petition under Order 21, Rule 99 are treated as a suit. The only difference which is made is that a separate suit is barred and such claims are to be adjudicated in the ``` O.P.(C.) No.1512 of 2023 ``` 9 same proceedings, so as to prevent the valuable time of the parties, as also, the Court and also for an early quietus of the issue. The same will not mitigate the status of the proceedings, as not coming within the scope of a proceeding akin to that of a suit. It may also be observed that a claim petition being filed under Order 21, Rule 99, or for that matter Order 21, Rule 58, has all the trappings of a plaint. Therefore, the provision which deals with Order 6, Rule 17 providing for amendment of pleadings would apply with equal force to such applications as well. At any rate, the principles embodied in Order 6, Rule 17 should surely apply, since the provision seek to serve a definite purpose. This is all the more so in the context of the proviso to Order 6, Rule 17, which was subsequently inserted by Act 22 of 2002. While Order 6, Rule 17 mandates that amendment of pleadings are to be allowed on such terms as may be just, so long as such amendments are necessary for the purpose of ``` O.P.(C.) No.1512 of 2023 ``` 10 determining the real controversy between the parties, the proviso introduces an interdiction in allowing such amendments, which are brought in after commencement of the trial, unless the Court comes to the conclusion that the party could not have raised the matter before the commencement of the trial, despite due diligence. The obvious purpose is to ensure that the trial, once started, shall not be impeded for reasons of amendment etc, unless it is inevitable and could not have been brought earlier. The principle governing this provision should squarely apply insofar as a claim petition under Order 21, Rule 99 as well. 7. In the circumstances, this Court cannot find any infirmity or illegality with respect to Ext.P12 order of the learned Munsiff, which dismissed the present application vide Ext.P10 seeking amendment of the claim petition. This Court also notice that the instant Ext.P10 amendment application has been filed after examining as many as five witnesses on the part of the ``` O.P.(C.) No.1512 of 2023 ``` 11 claim petitioners and two witnesses on the part of the decree holder. The amendment application was filed when the decree holder himself has filed proof affidavit and the matter stood posted for his cross examination. Both on facts, as also on law, the amendment sought for cannot be allowed. Therefore, there is little merit in the instant Original Petition and the same will stand dismissed. **Sd/-** **C. JAYACHANDRAN** **JUDGE** SKP/19-03 ``` O.P.(C.) No.1512 of 2023 ``` 12 ## `APPENDIX OF OP(C) 1512/2023` |`PETITIONERS’ EXHIBITS:`|| |---|---| |`EXHIBIT P1`|`TRUE COPY OF THE PLAINT IN O.S.NO.412/2017 ON`| ||`THE FILE OF MUNSIFFS COURT, PERUMBAVOOR DATE`| ||`NIL`| |`EXHIBIT P2`|`TRUE COPY OF THE WRITTEN STATEMENT IN`| ||`O.S.NO.412/2017 ON THE FILE OF MUNSIFFS COURT,`| ||`PERUMBAVOOR FILED BY THE 4TH AND 5TH`| ||`RESPONDENTS HEREIN DATED 03.01.2019`| |`EXHIBIT P3`|`TRUE COPY OF THE PLAINT IN O.S.NO. 413/2017 ON`| ||`THE FILE OF MUNSIFFS COURT, PERUMBAVOOR DATE`| ||`NIL`| |`EXHIBIT P4`|`TRUE COPY OF THE JUDGMENT DATED 30.11.2019 IN`| ||`O.S. NO.412/2017 PASSED BY THE MUNSIFF COURT,`| ||`PERUMBAVOOR`| |`EXHIBIT P4(A)`|`TRUE COPY OF THE JUDGMENT DATED 30.11.2019 IN`| ||`O.S. NO. 413/2017 PASSED BY THE MUNSIFF'S`| ||`COURT, PERUMBAVOOR`| |`EXHIBIT P5`|`TRUE COPY OF THE DECREE DATED 30.11.2019 IN`| ||`O.S.NO.413/2017 PASSED BY THE MUNSIFF'S COURT,`| ||`PERUMBAVOOR AND THE SETTLEMENT AGREEMENT WHICH`| ||`FORM PART OF THE DECREE`| |`EXHIBIT P6`|`TRUE COPY OF THE EXECUTION PETITION FILED AS`| ||`E.P. NO. 125 OF 2020 IN O.S.NO.412 OF 2017 ON`| ||`THE FILE OF THE HONOURABLE MUNSIFF'S COURT,`| ||`PERUMBAVOOR DATED 01.12.2020`| |`EXHIBIT P7`|`TRUE COPY OF THE CLAIM PETITION FILED AS E.A.`| ||`NO. 62 OF 2023 IN E.P. NO. 125 OF 2020 IN`| ||`O.S.NO.412 OF 2017 ON THE FILE OF THE`| ||`HONOURABLE MUNSIFF'S COURT, PERUMBAVOOR DATED`| ||`20.02.2023`| |`EXHIBIT P8`|`TRUE COPY OF THE COUNTER AFFIDAVIT IN E.A. NO.`| ||`62 OF 2023 IN E.P. NO. 125 OF 2020 IN`| ||`O.S.NO.412 OF 2017 ON THE FILE OF THE`| ||`HONOURABLE MUNSIFF'S COURT, PERUMBAVOOR FILED`| ||`BY THE RESPONDENTS 1,2,3 & 6 HEREIN DATED`| ||`22.02.2023`| |`EXHIBIT P9`|`TRUE COPY OF THE COUNTER AFFIDAVIT IN E.A. NO.`| ||`62 OF 2023 IN E.P. NO. 125 OF 2020 IN`| ||`O.S.NO.412 OF 2017 ON THE FILE OF THE`| ||`HONOURABLE MUNSIFF'S COURT, PERUMBAVOOR FILED`| ||`BY THE RESPONDENTS 4 & 5 HEREIN DATED`| ||`14.03.2023`| |`EXHIBIT P10`|`TRUE COPY OF THE AMENDMENT APPLICATION FILED AS`| ``` O.P.(C.) No.1512 of 2023 ``` 13 ``` E.A.NO.124 OF 2023 IN E.A. NO. 62 OF 2023 E.P. NO. 125 OF 2020 IN O.S.NO.412 OF 2017 ON THE FILE OF THE HONOURABLE MUNSIFF'S COURT, PERUMBAVOOR DATED 12.04.2023 EXHIBIT P11TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS 1 TO 3 & 6 IN E.A. NO.124 OF 2023 IN E.A. NO. 62 OF 2023 E.P. NO. 125 OF 2020 IN O.S. NO. 412 OF 2017 ON THE FILE OF THE HONOURABLE MUNSIFF'S COURT, PERUMBAVOOR DATED 06.06.2023 EXHIBIT P12TRUE COPY OF THE ORDER DATED 21.06.2023 IN E.A.NO.124 OF 2023 IN E.A.NO.62 OF 2023 IN E.P.NO.125 OF 2020 IN O.S.NO.412 OF 2017 PASSED BY THE HONOURABLE MUNSIFF'S COURT, PERUMBAVOOR RESPONDENTS’ EXHIBITS: EXHIBIT R2(A)TRUE PHOTOCOPY OF THE PARTNERSHIP DEED OF SAFA MILL STORES DATED 5/6/2015 EXHIBIT R2(B)TRUE PHOTOCOPY OF THE COMPROMISE DECREE IN O.S.NO.412/2017, MUNSIFF'S COURT, PERUMBAVOOR, DATED30/11/2019 INCLUDINGTHE FAMILY SETTLEMENT AGREEMENT. EXHIBIT R2(C)TRUE PHOTOCOPY OF THE OBJECTION DATED 20/8/2021 FILED BY THE 4TH RESPONDENT IN E.P.NO.125/2020 INO.S.NO.412/2017,MUNSIFF'SCOURT, PERUMBAVOOR. EXHIBIT R2(D)TRUE PHOTOCOPY OF OBJECTION DATED 9/9/2021 FILED BY THE 5TH RESPONDENT HEREIN IN E.P.NO.125/2020 IN O.S.NO.412/2017, MUNSIFF'S COURT, PERUMBAVOOR. EXHIBIT R4 (A)THE TRUE PHOTOCOPY OF THE PLAINT IN O.S NO. 412 OF 2017 ON THE FILE OF THE HONOURABLE MUNSIFFS COURT, PERUMBAVOOR EXHIBIT R4 (B)THE TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 AND 2 IN O.S NO. 412 OF 2017 ON THE FILE OF THE HONOURABLE MUNSIFFS COURT, PERUMBAVOOR ``` ``` TRUE COPY ``` ``` P.A. TO JUDGE ```