Muhammed (Died) and Others v. Cheruvattapoyil Ussain and Sarabi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 9TH DAY OF NOVEMBER 2017/18TH KARTHIKA, 1939** ## **OP(C).No. 2885 of 2016 (O)** **--------------------------IA 3951/2016 IN OS 353/2010 OF PRINCIPAL MUNSIFF COURT-11, KOZHIKODE** **---------------** ## **PETITIONER(S)/PLAINTIFFS:** ## **-------------------------** **1. MUHAMMED (DIED), AGED 65 YEARS, S/O. MOIDEEN.** ## **2. IYYATHU,** - **AGED 57 YEARS, W/O. MUHAMMED, KODIPARAMBATH, PERUVAYAL AMSOM, POOVATTUPARAMBA DESOM, KOZHIKODE TALUK.** **3. SIDDIQUE, AGED 37 YEARS, S/O. MUHAMMED, KODIPARAMBATH, PERUVAYAL AMSOM, POOVATTUPARAMBA DESOM, KOZHIKODE TALUK.** ## **4. SAKEENA,** **AGED 34 YEARS, D/O. MUHAMMED, MANTHALAPALAM, NAGARAM AMSOM, FRANCIS ROAD, KOZHIKODE.** **BY ADVS.SRI.NIRMAL. S SMT.VEENA HARI** ## **RESPONDENT(S)/DEFENDANTS:** **------------------------** **1. CHERUVATTAPOYIL USSAIN, AGED 60 YEARS, S/O. ALIKUTTY, PADINHARE PARAMBIL, PERUVAYAL AMSOM DESOM, KOZHIKODE TALUK-673001.** **2. SARABI, AGED 42 YEARS, W/O. USSAIN, PADINHARE PARAMBIL, PERUVAYAL AMSOM DESOM, KOZHIKODE TALUK-673001.** **R1 BY ADVS. SRI.P.R.SREEJITH SRI.M.PROMODH KUMAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.V.** ## **OP(C).No. 2885 of 2016 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.353/2010 DATED 26-04-2010. EXHIBIT P2 TRUE COPY OF THE COMMISSIONER'S REPORT DATED 25-12-2010. EXHIBIT P3 TRUE COPY CMP 121/2010 IN CMP 63/2010. EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM. EXHIBIT P5 TRUE COPY OF I.A.3951/2016 DATED 19-09-2016. EXHIBIT P6 TRUE COPY OF THE ORDER IN I.A.3951/2016 IN O.S.353/2010 DATED 27-10-2016. RESPONDENT(S)' EXHIBITS NIL -----------------------** **/TRUE COPY/ K.V. P.S.TO JUDGE** ## **ANIL K. NARENDRAN, J.** ## **----------------------------------------------O.P(C) No.2885 of 2016 -----------------------------------------------** Dated this the 9[th] day of November, 2017 ## **J U D G M E N T** Petitioners 2 to 4, who are supplemental plaintiffs 2 to 4 in O.S.No.353 of 2010 on the file of the Principal Munsiff's Court-II, Kozhikode has filed this Original Petition under Article 227 of the Constitution of India seeking an order to set aside Ext.P6 order dated 27.10.2016 of the said court in I.A.No.3951 of 2016 in O.S.No.353 of 2010 and to allow the said application for amendment of plaint, as prayed for. 2. On 15.11.2016, when this Original Petition came up for admission, this Court admitted the matter on file and issued notice to the respondents by special messenger. This Court has also granted an interim stay of all further proceedings in O.S.No.353 of 2010 on the file of the Principal Munsiff's Court-II, Kozhikode for a period of one week. The said interim order, which was extended from time to time, was extended until further orders on 22.6.2017. 3. Heard the learned counsel for the petitioners/plaintiffs O.P(C) No.2885 of 2016 :-2-: and also the learned counsel for the respondents/defendants. 4. Petitioners 2 to 4 are the legal heirs of one Muhammed, who filed O.S.No.353 of 2010 seeking a permanent prohibitory injunction restraining the defendant, the 1[st] respondent herein, and his men from trespassing into the plaint schedule property and from altering the western boundary of the plaint schedule property. The suit was originally moved before the vacation court, i.e., the District Court, Kozhikode and the said court granted an interim order of injunction in C.M.P.No.63 of 2010 restraining the defendant from trespassing into the plaint schedule property, which was intimated to the defendant on 29.4.2010. However, on 1.5.2010 the defendant violated the said order of injunction by trespassing into the plaint schedule property and putting up a way having length of 25 meters and the width of 3½ feet. The original plaintiff took out an emergent commission. The Advocate Commissioner inspected the property on 12.5.2010 and submitted Ext.P2 report dated 22.5.2010. The original plaintiff has also moved C.M.P.No.121 of 2010 in C.M.P.No.63 of 2010, an application under Order XXXIX Rule 2A of the Code of Civil O.P(C) No.2885 of 2016 :-3-: Procedure, 1908 seeking an order to prosecute the defendant for the violation of injunction order and for restoring the property to its original position. 5. The defendant entered appearance and filed Ext.P4 written statement dated 12.8.2010 along with a counter claim. During the pendency of the suit, the original plaintiff died and his legal heirs, i.e., petitioners 2 to 4 herein were impleaded as supplemental plaintiffs 2 to 4, as per the order dated 22.7.2013 in I.A.No.2609 of 2013. Subsequently, pursuant to an order passed in I.A.No.15 of 2016, the wife of the original defendant was impleaded as supplemental 2[nd] defendant and the plaint was amended, incorporating reliefs against the said defendant as well. 6. When the suit was listed for evidence on the side of the defendants, supplemental plaintiffs filed I.A.No.3951 of 2016, i.e., Ext.P5 application dated 19.9.2016, under Order VI Rule 17 of the Code seeking an order to amend the plaint, in order to incorporate the relief of mandatory injunction directing the defendants to remove the construction made by them on the southern side of the plaint schedule property. The defendants opposed the said O.P(C) No.2885 of 2016 :-4-: ## application by filing their counter. 7. After considering the rival contentions the court below by Ext.P6 order dated 27.10.2016 dismissed I.A.No.3951 of 2016 holding that, the existence of the way through the southern side of the plaint schedule property has already been reported by the Advocate Commissioner as early as on 22.5.2010 in Ext.P2 report. Though, enough opportunities were given to the plaintiffs to take steps, no steps were taken. The suit is of the year 2010 and the evidence is partly over. If the prayer for amendment is allowed at this point of time, it will prejudice the defendants and that, the plaintiffs could not make out a case that in spite of due diligence they could not make such an application before the commencement of trial. Accordingly, the court below by Ext.P6 order dismissed I.A.No.3951 of 2016 as devoid of merit. 8. The proviso to Order VI, Rule 17 of the Code introduced by the Code of Civil Procedure (Amendment) Act, 2002 is intended to ensure speedy trial of cases by curtailing protraction of cases at the trial stage. In a case where the trial has commenced, the court can allow an application made for O.P(C) No.2885 of 2016 :-5-: amendment of pleadings, if it comes to the conclusion that in spite of due diligence, the applicant could not file it before the commencement of trial, and that the amendment sought for is necessary for the purpose of determining the real controversy between the parties. 9. In **Rajkumar Gurawara (Dead) through Lrs. v. S.K. Sarwagi and Co. (P) Ltd. [(2008) 14 SCC 364]** the Apex Court held that, Order VI, Rule 17 of the Code confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. In the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may O.P(C) No.2885 of 2016 :-6-: arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso. 10. In **Jayalakshmi v. Sarada [(2009) 14 SCC 525]** a decision relied on by the learned counsel for the petitioners, one of the questions that was raised before the Apex Court was as to the distinction between Order VI, Rule 17 and Order VIII, Rule 9 of the Code of Civil Procedure. In the said decision, after referring to the provisions of Order VI Rule 17 of the Code, the Apex Court held that the said Order and Rule speak of amendment of pleadings, whereas Order VIII, Rule 9 provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas, by reason of the former, unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings. In the said decision, after referring to the provisions under Order VI Rule 17 of the Code and also the decisions on that aspect, the Apex Court held that the proviso appended to Order VI, Rule 17 of the Code is couched in a mandatory form. The court's jurisdiction O.P(C) No.2885 of 2016 :-7-: to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of trial. 11. In the instant case, the existence of the way through the southern side of the plaint schedule property has already been reported by the Advocate Commissioner in Ext.P2 report, as early as on 22.5.2010. The plaintiffs filed I.A.No.3951 of 2016 for amendment, only on 19.9.2016, when the suit was listed for evidence on the side of the defendants. The plaintiffs could not explain the delay in filing the application for amendment and they could also not establish that, in spite of due diligence, they could not file such an application before the commencement of trial. In such circumstances, the court below cannot be found fault with in dismissing the said application for amendment by Ext.P6 order. 12. In **Abdul Khader v. Surburban Chit Funds (P) Ltd. (2006 (1) KLT 749)** this Court held that, delay in the judicial process will only be further aggravated if this Court by invoking the powers under Article 227 of the Constitution of India were to O.P(C) No.2885 of 2016 :-8-: show undeserved indulgence to parties to a civil suit. An incorrect impression has gained ground that any and every error, inadequacy and contumacious lethargy in the conduct of civil cases can be corrected at later stages by approaching the superior courts. Law is for the alert. Justice can be claimed only by those who pursue the avenues open to them with diligence. The impression that the party and the counsel need open the case bundle only after the case is listed for trial must go at the earliest. Once issues are framed, it is the duty of the parties to contemplate the steps required to be taken in the suit and prompt and proper steps must be taken. 13. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to O.P(C) No.2885 of 2016 :-9-: ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 14. In **Sobhana Nair K.N. v. Shaji S.G.Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 15. Viewed in the light of the law laid down in the decisions referred to above, the reasoning of the court below in Ext.P6 order cannot be termed either arbitrary or perverse, warranting O.P(C) No.2885 of 2016 :-10-: an interference of this Court in exercise the supervisory jurisdiction under Article 227 of the Constitution. It cannot also be said that, while declining exercise of powers under Order VI Rule 17 of the Code, the court below committed any manifest error, warranting an interference by this Court. In the result, this Original Petition fails and the same is accordingly dismissed. ## Sd/- **ANIL K. NARENDRAN JUDGE** //True Copy// P.A to Judge ab