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High Court of KeralaSingle JudgeDismissed

Muraleedharan and others v. Sukumaran Nair and others

Case / Petition Number:OP(C) NO. 3019 OF 2018

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • V. G. Arun
Judgment Date
2021-11-26
Court Decision / Holding
The original petition is dismissed. The trial court shall take earnest efforts to decide OS 100/2010 at the earliest.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • Muraleedharan
  • Addl. P. Usha Devi
  • Addl. P. Dheerajkumar
  • Addl. P. Sooraj

Respondents

  • Sukumaran Nair
  • Smt. Karthiyayani Amma
  • Sri. Suresh Kumar
  • Sri. Sreedhara Menon
  • Sri. Bahuleyan
  • Sri. Nandakumar
  • Sri. Venugopal
  • Sri. Krishna Kumar
  • Sri. Gopy
  • Sri. Sujeesh
  • Smt. Padmavathy
  • Sri. Radhakrishnan
  • Sri. Sreekumar
  • Sri. Muraleedharan
  • Sri. Sasidharan
  • Sri. Madhusoodhanan
  • Smt. Bhama
  • Smt. Latha

Legal Representation & Advocates

Counsels for Petitioners

  • • M.V. Mathew
  • • Sri. Biju Antony Thekkanath

Counsels for Respondents

  • • Smt. Sree Devi Kylasanath
  • • Sri. T.S. Sarath
  • • Sri. Mansoor Ali
  • • Sri. Achuth Kylasan
  • • Sri. R. Mahesh Menon
  • • Sri. Deago John K
  • • Sri. Joselal George

Case Synopsis & Summary

OP(C) 3019/2018 arises from a civil original suit OS 100/2010 before the Sub Court, Irinjalakuda, in which the plaintiff Muraleedharan and others sought a decree of prohibitory injunction restraining defendants from trespassing on plaint A Schedule property, destruction of cultivation, construction of a canal or opening a new passage through the plaint schedule and damages for destruction already caused. The plaint was progressively amended to include a prayer for recovery of possession of plaint B Schedule property on the strength of title, and later to declare that the defendants have no right of way through the plaint properties. Further, Ext. P3 lengthy amendment sought to direct restoration of a demolished boundary wall by a mandatory injunction. The trial court dismissed Ext. P3 as belated and not bona fide. The petitioner contends the amendment was filed before trial and should be allowed, particularly since the act of demolition compelled it, and that Order 6 Rule 17 proviso would not apply. The respondent counters that the suit’s nature was substantially altered from injunction to possession and declaration, and that the amendment would protract proceedings causing prejudice. The High Court, exercising supervisory power under Article 227, found no reason to interfere, noting prior amendments had been granted and that belated amendments delay proceedings; it cited Revajeetu Builders to caution against frivolous amendments. Accordingly, the original petition is dismissed and OS 100/2010 is urged to be decided promptly by the trial court.

Provisions of Law Cited

Order 6 Rule 17 CPC (Proviso)Order 39 Rule 2(A) CPCArticle 227 of the Constitution

Legal Doctrines & Maxims

  • Frivolous and belated applications should not be entertained.
  • The object of Order 6 Rule 17 is to ensure that all matters in dispute are brought within the preview of one suit.
  • A suit should not be protracted by dilatory tactics.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the amendment was submitted prior to the commencement of trial and the proviso to Order 6 Rule 17 would not be attracted. They argued that the illegal act of the defendants demolishing portions of the boundary wall compelled the amendment, and that the court below erred in treating the amendment as frivolous. They maintained that the purpose of Order 6 Rule 17 is to ensure all disputes are brought within a single suit and that the amendment should have been allowed to consolidate issues within one suit.

Contentions of Respondents

The respondents argued that the petition is an attempt to protract the suit. They contended that the amendment has substantially changed the nature of the suit from injunction to possession and then to declaration, causing delay and prejudice. They asserted that the status-quo order and dilatory tactics already prejudice the respondents.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Revajeetu Builders and Developers v. Narayanaswamy and Sons(2009) 10 SCC 84PositiveThe Apex Court held that frivolous and belated applications intended to delay proceedings should not be entertained, a principle relied upon to deny the belated amendment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE V.G.ARUN`** ``` FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943 ``` ## **`OP(C) NO. 3019 OF 2018`** ## **`AGAINST THE ORDER/JUDGMENT IN OS 100/2010 OF PRINCIPAL SUB`** ## **`COURT,IRINJALAKUDA`** ## **`PETITIONER/S:`** - **`1 MURALEEDHARAN AGED 63 YEARS S/O MEENAKSHI AMMA ETTUVEETTIL HOUSE, POOLANY, MELOOR, CHALAKUDY TALUK, TRICHUR DISTRICT`** - **`2 ADDL.P. USHA DEVI V. AGED 53 YEARS`** - **`W/O LATE MURALEEDHARAN, ETTUVEETTILHOUSE, POOLANY, MELOOR , CHALAKUDYTALUK , TRICHUR DISTRICT`** - **`3 ADDL.P. DHEERAJKUMAR AGED 24 YEARS`** - **`S/O LATE MURALEEDHARAN, ETTUVEETTILHOUSE, POOLANY, MELOOR , CHALAKUDYTALUK , TRICHUR DISTRICT`** - **`4 ADDL.P. SOORAJ AGED 22 YEARS`** - **`S/O LATE MURALEEDHARAN, ETTUVEETTILHOUSE, POOLANY, MELOOR , CHALAKUDYTALUK , TRICHUR DISTRICT(ADDITIONAL PETITIONER S 2 TO 4 ARE IMPLEADED AS THE LR'S OF DECEASED SOLE PETITIONER VIDE ORDER DATED 27.10.2021 IN I.A.NO:2/2021) BY ADVS.`** - **`M.V.MATHEW SRI.BIJU ANTONY THEKKANATH`** ## **`RESPONDENT/S:`** - **`1 SUKUMARAN NAIR S/O. KALLYANI AMMA, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O, CHALAKUDY TALUK, PIN- 680 722.`** - **`2 SMT.KARTHIYAYANI AMMA, D/O.MOOKAMMY AMMA, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** ``` OP(C) NO. 3019 OF 2018 ``` ``` 2 ``` - **`3 SRI.SURESH KUMAR, S/O.KARTHYAYANI AMMA, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`4 SRI.SREEDHARA MENON, S/O.LAKSHMIKUTTY AMMA, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`5 SRI.BAHULEYAN, S/O.KUMARA MENON, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`6 SRI.NANDAKUMAR, S/O.KUMARA MENON, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`7 SRI.VENUGOPAL, S/O.MALATHY AMMA, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`8 SRI.KRISHNA KUMAR, S/O.MALATHY AMMA, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`9 SRI.GOPY S/O.LAKSHMYKUTTY AMMA, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`10 SRI.SUJEESH, S/O.GOPY, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`11 SMT.PADMAVATHY, D/O.SANKARANKUTTY MENON, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`12 SRI.RADHAKRISHNAN, S/O.SANKARANKUTTY MENON, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`13 SRI.SREEKUMAR, S/O.SANKARANKUTTY MENON, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`14 SRI.MURALEEDHARAN, S/O.SANKARANKUTTY MENON, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`15 SRI.SASIDHARAN, S/O.SANKARANKUTTY MENON, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** - **`16 SRI.MADHUSOODHANAN, S/O.SANKARANKUTTY MENON, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722.`** ## **`OP(C) NO. 3019 OF 2018`** ## **`3`** ``` 17SMT.BHAMA, D/O.KARTHIYANI AMMA, ETTUVEETTIL HOUSE, POOLANY, MELOOR P.O., CHALAKUDY TALUK, PIN-680722. 18SMT.LATHA, W/O.PARIYARATH VEETTIL RAVI, MANAVALASSERY VILLAGE, KOMBARA DESAM, MUKUMDAPURAM TALUK, (CHALAKUDY TALUK), PIN-680722. BY ADVS. SMT.SREEDEVI KYLASANATH SRI.T.S.SARATH SRI.MANSOOR ALI SRI.ACHUTH KYLAS SRI.R.MAHESH MENON SRI.DEAGO JOHN K SRI.JOSELAL GEORGE ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 3019 OF 2018 ``` ``` 4 ``` ## **JUDGMENT** ## **Dated this the 26[th] day of November, 2021** The petitioner is the plaintiff in O.S No.100/2010 pending on the files of the Subordinate Judge's Court, Irinjalakuda. The suit is originally filed for a decree of prohibitory injunction restraining the defendants from trespassing into plaint A Schedule property, destroying the cultivation therein, constructing canal or cutting open a new way through A Schedule and damages for the destruction already done. The plaint was later amended by incorporating a prayer for recovery of possession of plaint B schedule property on the strength of title. Yet again the plaint was amended by including the relief of declaration that defendants do not have right of way through plaint schedule properties. Much later, the plaintiff filed Ext.P2 application seeking to amend the plaint again, this time by alleging that the defendants had demolished portions of the boundary wall and hence, there should be a mandatory injunction directing ``` OP(C) NO. 3019 OF 2018 ``` ``` 5 ``` restoration of the wall to its original condition. By Ext.P3 order, trial court dismissed the application finding it to be highly belated and without bona fides. 2.Learned counsel for the petitioner assailed the findings in the impugned order, contending that the application for amendment was submitted prior to the commencement of trial and the interdiction under the proviso to Order 6 Rule 17 will not be attracted. It is contended that the illegal act of the defendants, of demolishing portions of his compound wall had compelled the petitioner to file the amendment application. Being so, the court below committed a mistake in holding the amendment to be frivolous. Finally, it is contended that the very purpose of Order 6 Rule 17 being to ensure that all matters in dispute are brought within the preview of one suit, the trial court ought to have allowed the amendment. 3.Learned counsel for the respondent refuted the contentions and submitted that the attempt of the petitioner is to protract the suit. It is contended that the nature of the ``` OP(C) NO. 3019 OF 2018 ``` ``` 6 ``` suit was substantially modified by converting a suit for injunction simpliciter to a suit for recovery of possession and thereafter to a suit for declaration. It is submitted that, due to the dilatory tactics adopted by the petitioner, a suit of the year 2010 is pending without finalization and order of status quo therein is causing substantial prejudice to the respondents. 4.Having heard the learned counsel and having read the impugned order, I find no reason to interfere with the order, in exercise of the supervisory power under Article 227 of the Constitution. Indisputably, the earlier applications for amendment filed by the petitioner were allowed by the court. The instant application is filed based on a vague allegation that the defendants had demolished portions of the compound wall. From the arguments advanced it has come out that the petitioners have resorted to the remedy under Order 39 Rule 2 (A) CPC, for the alleged violation of the status quo order. If so, there is no necessity for amending the plaint for including the relief of mandatory injunction. ``` OP(C) NO. 3019 OF 2018 ``` ``` 7 ``` Even otherwise, the application is highly belated and if allowed, will cause substantial prejudice to defendants. In **Revajeetu Builders and Developers v. Narayanaswamy and Sons [(2009) 10 SCC 84],** after setting out the relevant factors to be considered, the Apex Court observed that frivolous and belated applications, intended to delay the proceedings should not be entertained. For the aforementioned reasons, the original petition is dismissed. Being a suit of the year 2010, the trial court shall take earnest efforts to decide the suit at the earliest. **Sd/V.G ARUN JUDGE** SJ ``` OP(C) NO. 3019 OF 2018 ``` ``` 8 ``` ## **`APPENDIX OF OP(C) 3019/2018`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF PETITION WITH AFFIDAVIT FOR ADJOURNING THE CASE FILED IN SUB COURT IRINJALAKUDA IN OS 100/2010 ``` ``` EXHIBIT P2TRUE COPY OF IA 118/2018 IN OS 100/2010, ON THE FILE OF SUB COURT IRINJALAKUDA FOR AMENDING THE PLAINT. ``` ``` EXHIBIT P3TRUE COPY OF THE ORDER IN IA 118/2018 IN OS 100/2010, ON THE FILE OF SUB COURT IRINJALAKUDA EXHIBIT P4TRUE COPY OF COMMISSION REPORT WITH SKETCH IN OS 100/2010, ON THE FILE OF SUB COURT IRINJALAKUDA ``` ``` EXHIBIT P5TRUE COPY OF COMMISSION REPORT INPURSUACE OF INSPECTION DATED 15/3/2018 IN OS 100/2010, ON THE FILE OF SUB COURT IRINJALAKUDA EXHIBIT P6TRUE COPY OF COMMISSION REPORT INPURSUACE OF INSPECTION DATED 19/3/2018 IN OS 100/2010, ON THE FILE OF SUB COURT IRINJALAKUDA EXHIBIT P7TRUE COPY OF OBJECTION TO COMMISSION REPORT FIELD BY PLAINTIFF EXT. P4 IN OS 100/2010, ON THE FILE OF SUB COURT IRINJALAKUDA EXHIBIT P8TRUE COPY OF ADDITIONAL WRITTEN STATEMENT FIELD IN OS 100/2010, ON THE FILE OF SUB COURT IRINJALAKUDA ```