Nalini v. Chandrika Kumari Amma and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942** ## **OP(C).No.833 OF 2017(O)** **SEEKING TO SET ASIDE EXHIBIT:P8/THE ORDER DATED 8.12.2017 IN I.A.NO.302/2017 AND I.A.NO.304/2017 IN OS 129/2012 DATED 08-02-2017 OF MUNSIFF MAGISTRATE COURT, PARAVOOR AND SEEKING TO ALLOW THE SAME.** ## **PETITIONER/1ST PLAINTIFF:** **NALINI** **AGED 39 YEARS, W/O LATE RAJENDRA PRASAD, KUNNUVILA VEEDU, NEAR PARAYIL JUNCTION, KALLUVATHUKKAL VILLAGE, KOLLAM TALUK** **BY ADV. SMT.MINI GANGADHARAN** ## **RESPONDENTS/DEFENDANTS 1 TO 5 & PLAINTIFFS 2 & 3:** **1 CHANDRIKA KUMARI AMMA AGED:65 YEARS, D/O DEVAKI AMMA, PUTHUVAL PUTHEN VEEDU, (FROM KIZHAKKUMKARA PUTHEN VEEDU) CHIRAKKARA EDAVATTOM CHERRY, KALLUVATHUKKAL VILLAGE, KOLLAM** - **2 AIYYAPPAN PILLAI** **AGED:67 YEARS, S/O NEELAKANDA PILLAI, PUTHUVAL PUTHEN VEEDU, (FROM KIZHAKKUMKARA PUTHEN VEEDU) CHIRAKKARA EDAVATTOM CHERRY, KALLUVATHUKKAL VILLAGE, KOLLAM** - **3 PRADEEP KUMAR** **AGED:37 YEARS, S/O AIYYAPPAN PILLAI, PUTHUVAL PUTHEN VEEDU, (FROM KIZHAKKUMKARA PUTHEN VEEDU) CHIRAKKARA EDAVATTOM CHERRY, KALLUVATHUKKAL VILLAGE, KOLLAM** O.P.(C)No.833/2017 2 - **4 SANTHOSH KUMAR MONI** - **AGED:33 YEARS, S/O AIYYAPPAN PILLAI, PUTHUVAL PUTHEN VEEDU, (FROM KIZHAKKUMKARA PUTHEN VEEDU) CHIRAKKARA EDAVATTOM CHERRY, KALLUVATHUKKAL VILLAGE, KOLLAM** - **5 PRASANTH** **AGED:30 YEARS, S/O AIYYAPPAN PILLAI, PUTHUVAL PUTHEN VEEDU, (FROM KIZHAKKUMKARA PUTHEN VEEDU) CHIRAKKARA EDAVATTOM CHERRY, KALLUVATHUKKAL VILLAGE, KOLLAM** - **6 ABHILASH.N.R AGED:18 YEARS, LATE RAJENDRA PRASAD, KUNNUVILA VEEDU, NEAR PARAYIL JUNCTION, KALLUVATHUKKAL VILLAGE, KOLLAM TALUK** - **7 ASWATHY.R AGED:21 YEARS, D/O LATE RAJENDRA PRASAD, KUNNUVILA VEEDU, NEAR PARAYIL JUNCTION, KALLUVATHUKKAL VILLAGE, KOLLAM TALUK** **R1 BY ADV. SRI.S.BIJU (KIZHAKKANELA) R1 BY ADV. SRI.S.BIJU KIZHAKKANELA R1 BY ADV. SRI.JOHNSON GOMEZ** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07.10.2020, THE COURT ON 12.10.2020 DELIVERED THE FOLLOWING:** O.P.(C)No.833/2017 3 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ O.P.(C) No.833 of 2017 ----------------------------------------------Dated this the 12[th] day of October, 2020 ## **J U D G M E N T** The petitioner is the first plaintiff and respondents 1 to 5 are the defendants in the suit O.S.No.129/2012 on the file of the Munsiff's Court, South Paravur. Respondents 6 and 7 are the second and the third plaintiffs in the suit. 2. The suit is instituted for partition of the plaint A and B schedule properties. According to the plaintiffs, the plaint A schedule property belonged to the maternal grandmother of the deceased Rajendra Prasad, who was the husband of the first plaintiff and the eldest son of the first and the second defendants. Defendants 3 to 5 are the brothers of Rajendra Prasad. The plaintiffs have alleged that the maternal grandmother of Rajendra Prasad had gifted sixty cents of land out of the plaint A schedule property in his favour. Therefore, the O.P.(C)No.833/2017 4 plaintiffs claim that they have got three-fourth share in the above sixty cents of property. The plaintiffs have also alleged that the paternal grandmother of Rajendra Prasad had conveyed to him fifteen cents out of the property which is described in the plaint B schedule. Therefore, the plaintiffs claim three-fourth share in the aforesaid fifteen cents of property also. 3. The plea of the defendants in the suit is that the plaint A and B schedule properties belonged to the first and the second defendants and that they have executed documents in respect of the properties in favour of the other defendants and that the plaintiffs have got no right over the properties. 4. The plaintiffs and the defendants adduced evidence in the suit. After closing the evidence in the suit, the plaintiffs filed an application as I.A.No.304/2017 (Ext.P6) under Section 151 of the Code of Civil Procedure, 1908 (for short 'the Code') to receive and admit in evidence three documents, that is, three encumbrance certificates in respect of the plaint A schedule property. O.P.(C)No.833/2017 5 5. After closing the evidence in the suit, the plaintiffs also filed an application as I.A.No.302/2017 (Ext.P7) for amendment of the plaint. By the proposed amendment, the plaintiffs sought a decree of declaration that the settlement deeds 2023/2012, 2024/2012 and 2025/2012 of the S.R.O Chathannur executed in favour of defendants 3 to 5 and the settlement deed No.2022/2012 executed in favour of the fifth defendant are null and void. 6. As per Ext.P8 order, the trial court dismissed Exts.P6 and P7 applications. The relevant portion of Ext.P8 order passed by the trial court reads as follows: _“It is trite that after closing the evidence and posted the suit for hearing, it is improper, irregular and illegal to set the clock back to reopen the case again for recording the evidence and to allow the petition for amendment U/O VI Rule 17 C.P.C. It is further strange that the IA is filed to amend the plaint during the stage of hearing the suit which moves towards for the culmination by pronouncement of the judgment. This court is of the opinion that these exercises from the part of the counsel for the plaintiff is to_ O.P.(C)No.833/2017 6 _obstruct or upset the free flow of the trial in the case and to take it estray. So these applications are liable to be turned down and I do accordingly.”_ 7. The first plaintiff has filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P8 order. 8. Order VI Rule 17 of the Code provides that, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The proviso to this rule states that, no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. 9. A close scrutiny of the proviso to Order VI Rule 17 of the Code would show that, an application for amendment of the plaint can be allowed even if it was filed at a belated stage, after O.P.(C)No.833/2017 7 the commencement of the trial of the suit, if the court comes to the conclusion that inspite of due diligence, the plaintiff could not have raised the matter before commencement of the trial of the suit. Therefore, while dealing with an application for amendment of pleadings filed by a party after the commencement of the trial of the case, the crucial question to be considered by the court is, whether the party could not have filed the application for amendment at an earlier stage inspite of due diligence on his part. ## 10. In **Rajkumar Gurawara v. S. K. Sarwagi and Company : AIR 2008 SC 2303** , it has been held as follows: _“The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to_ O.P.(C)No.833/2017 8 _satisfy the Court that inspite of due diligence could not raise the issue before the commencement of trial and the Court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order 6 Rule 17 CPC 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. Pretrial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court 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 arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso”._ 11. The proviso to Order VI Rule 17 of the Code, to some extent, curtails the absolute discretion of the court to allow O.P.(C)No.833/2017 9 amendment at any stage. If the application for amendment is filed after commencement of trial, it has to be shown that inspite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed with the intention to cause delay in the trial (See **Salem Advocate Bar Association v. Union of India : (2005) 6 SCC** **344** ). Amendment of pleadings, subsequent to the commencement of trial, would give surprise to the opposite party and cause delay in the trial. Once the trial commences on the known pleas, it will be very difficult for any side to reconcile. The proviso to Order VI Rule 17 of the Code intends to curtail delay and expedite trial of the case (See **Chander Kanta Bansal v. Rajinder Singh : AIR 2008 SC 2234** ). 12. The proviso to Order VI Rule 17 of the Code is couched in a mandatory form. The Court's jurisdiction to allow an application for amendment of pleadings is taken away unless the conditions precedent therefor are satisfied. The court must come to a conclusion that inspite of due diligence the parties could not have raised the matter before the commencement of the trial O.P.(C)No.833/2017 10 ## (See **Vidyabai v. Padmalatha : AIR 2009 SC 1433).** 13. What is meant by the term 'due diligence'? In **Chander Kanta Bansal** (supra), the Apex Court has construed the expression “due diligence” as stated below: _"The words "due diligence" have not been defined in the Code of Civil Procedure, 1908. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."_ O.P.(C)No.833/2017 11 14. The application for amendment of the plaint was dismissed by the trial court for the sole reason that it was filed at a highly belated stage, that is, after closing the evidence in the suit. The trial court did not consider the question whether the plaintiffs had exercised due diligence and inspite of exercising due diligence, whether they could not have filed the application for amendment at an earlier stage. 15. Amendment of plaint is sought by the plaintiffs seeking new relief of declaration that the settlement deeds executed in favour of the defendants are null and void. In that context, the question whether the defendants had disclosed the existence of the settlement deeds in the written statement filed by them would assume significance. If the defendants had disclosed that fact in the written statement, the plaintiffs could not contend that they became aware of the settlement deeds or their execution only after closing the evidence in the suit. 16. Even if the trial court finds that, inspite of exercising due diligence, the plaintiff could not have filed an application for amendment of the plaint before commencement of the trial of O.P.(C)No.833/2017 12 the suit, the court has to consider certain other aspects also. They are : (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? The real controversy test is the basic or cardinal test in deciding whether the amendment is to be allowed or refused. It is the primary duty of the Court to decide whether the amendment is necessary to decide the real dispute between the parties. (2) Whether the application for amendment is bona fide or mala fide? (3) Whether the amendment would cause such prejudice to the opposite party which cannot be compensated adequately by payment of costs? (4) Whether rejecting the application for amendment would lead to injustice or lead to multiple litigation? (5) Whether the proposed amendment would fundamentally change the nature and character of the case? (6) Whether the claims raised by way of amendment would be barred by limitation as on the date of the application?. These are some of the important factors which shall be considered by the court in dealing with an application for amendment of pleadings. O.P.(C)No.833/2017 13 17. In the instant case, the trial court has not considered any of the aforesaid aspects also. 18. While passing Ext.P8 order, the trial court has also not properly considered the merits of Ext.P6 application filed by the plaintiffs. Ext.P6 application was also dismissed by the trial court on the sole ground that it was filed at a belated stage. 19. The Code earlier contained a specific provision in Order XVIII Rule 17A for production of evidence which was previously unknown or for evidence which could not be produced despite due diligence. This provision was however deleted with effect from 1.7.2002. Nevertheless, such an exclusion does not prevent the Court from receiving additional evidence, oral or documentary. In **Mathew Lawrence v. Rockey C. Neroth: 2020 SCC OnLine Ker 3849** , this Court had occasion to hold as follows: _“The power under Section 151 of the Code shall be sparingly exercised when the Court feels that it is absolutely necessary to do so. Where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the_ O.P.(C)No.833/2017 14 _issues and will assist in rendering justice, and the court is satisfied that non-production of such evidence earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit such additional evidence. But, in such cases, the Court shall ensure that delay in the proceedings in the suit is avoided and that the party affected is compensated by payment of costs. Deletion of the provision contained in Order XVIII Rule 17A from the Code does not mean that no evidence can be received at all, after a party closes his evidence”_ 20. In the instant case, in dealing with Ext.P6 application, the trial court failed to consider whether the additional documentary evidence sought to be produced by the plaintiffs would assist the court to clarify the evidence already adduced on the issues and whether non-production of such evidence by the plaintiffs earlier was for valid and sufficient reasons. 21. In the aforesaid circumstances, since the trial court has not properly exercised its jurisdiction in dismissing Exts.P6 and P7 applications, it has become necessary to remand the matters for fresh consideration and disposal by the trial court. O.P.(C)No.833/2017 15 22. Consequently, the original petition is allowed as follows: Ext.P8 order passed by the trial court is set aside and Exts.P6 and P7 applications filed by the plaintiffs are restored to the file of the trial court. The trial court shall consider Exts.P6 and P7 applications afresh and dispose of them in accordance with law. (sd/-) **R.NARAYANA PISHARADI, JUDGE** **jsr** O.P.(C)No.833/2017 16 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**P1**|**TRUE PHOTOCOPY OF TRUE PHOTOCOPY OF**| |---|---| ||**PLAINT IN OS NO. 129/2012 OF THE**| ||**MUNSIFF COURT, PARAVUR**| |**P2**|**TRUE PHOTOCOPY OF OBJECTION TO IA NO.**| ||**687/12 FILED BY THE RESPONDENTS 1 TO 3**| |**P3**|**TRUE COPY OF AFFIDAVIT IN LIEU OF**| ||**EVIDENCE FILED BY THE PETITIONER**| |**P4**|**TRUE COPY OF IA NO. 2100/2016 FILED**| ||**SEEKING TO AMEND THE NAME OF THE 5TH**| ||**RESPONDENT**| |**P5**|**TRUE COPY OF IA NO.1957/2006 FILED BY**| ||**THE PETITIONER SEEKING FOR A DIRECTION**| ||**TO THE VILLAGE OFFICER, KALLUVATHUKKAL**| ||**TO PRODUCE THE TRANSACTION DETAILS FOR**| ||**60 YEARS OF THE A AND B SCHEDULE**| ||**PROPERTIES**| |**P6**|**TRUE COPY OF ADDITIONAL AFFIDAVIT FILED**| ||**BY THE PETITIONER WITH RECORDS LIST AND**| ||**PETITIONER, I.A. NO. 304/2017 TO ACCEPT**| ||**THE RECORDS IN EVIDENCE REOPENING THE**| ||**EVIDENCE OF PETITIONER WITH LIST OF**| ||**RECORDS**| |**P7**|**TRUE COPY OF AMENDMENT PETITION, I.A**| ||**NO. 302/17**| |**P8**|**TRUE COPY OF COMMON ORDER IN IA NO.**| ||**302/2017 AND IA NO. 304/2017**| |**RESPONDENTS'**|**EXHIBITS : NIL**| TRUE COPY PS TO JUDGE