OP (FC) No. 133 of 2014 (R)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **& THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 2ND DAY OF JULY 2014/11TH ASHADHA, 1936** **OP (FC).No. 133 of 2014 (R)** **---------------------------I.A.NO.2585/2012 IN O.P.NO.83/2011 OF FAMILY COURT, THIRUVALLA.** **PETITIONER(S): --------------------------** **SUGATHAN K.R. S/O.PARAMESWARAN PILLAI, KAVINAL HOUSE, ULAVUKADU NOORANADU-690 504.** **BY ADV. SRI.S.VINOD BHAT** **RESPONDENT(S):** **----------------------------** **JYOTHI D/O.CHANDRASEKHARAN PILLAI, ASWINI, POOZHIKKADU KUDASSANADU P.O., PIN-689 512.** **BY ADV. SRI.K.R.RADHAKRISHNAN NAIR BY ADV. SMT.V.SHYLAJA** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No. 133 of 2014 (R)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1.TRUE COPY OF THE PETITION OP 83/2011 ON THE FILE OF THE FAMILY COURT, THIRUVALLA.** **EXHIBIT P2.TRUE COPY OF THE PETITION IA NO.3089/2011 IN OP NO.83/2011 ON THE FILE OF THE FAMILY COURT, THIRUVALLA.** **EXHIBIT P3.TRUE COPY OF THE PETITION IA NO.2585/2011 IN OP NO.83/2011 ON THE FILE OF THE FAMILY COURT, THIRUVALLA. EXHIBIT P4.TRUE COPY OF THE ORDER DATED 22/6/2013 IN IA NO.2585/2012 IN OP NO.83/2011 ON THE FILE OF THE FAMILY COURT, THIRUVALLA.** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** sdk+ ///True copy/// P.S. to Judge ## V.K.MOHANAN & ALEXANDER THOMAS, JJ. ================== ## O.P(F.C) No. 133 OF 2014 ================== Dated this the 2[nd] day of July, 2014 ## J U D G M E N T ## ALEXANDER THOMAS, J. The petitioner herein has filed O.P.No.83/2011 before the Family Court, Thiruvalla, for a declaration that he is entitled to get 'A' Scheduled property, reconveyed and half share in 'B' Scheduled property and for realisation of an amount of Rs.15,00,000/towards the amounts expended by him for the construction of the building, from the respondent herein (wife). Bereft of all the unnecessary details, the gist of the matter as far as it is relevant for the present controversy raised before us is as follows: 2. The petitioner has filed application under Section 151 of the Code of Civil Procedure praying for leave of the court to withdraw the suit to appropriately institute another suit before the court below. The court below considered the said application (Ext.P3) filed under Section 151 CPC and Order XXIII Rule 3 of the Code of Civil Procedure and opined that the question to be decided O.P.(F.C.)133/14 - : 2 :- is as to whether there is any formal defect in the framing of the case enabling the petitioner to withdraw the same with liberty to file a fresh Original Petition. 3. The court below found in the impugned Ext.P4 order that as to what exactly is the formal defect of the suit/O.P. is not stated in the affidavit filed in support of Ext.P3 herein. The court below held that failure or omission to schedule a property in the case or necessary pleadings in that regard is not a formal defect, which comes within the ambit of Order XXIII Rule 1(3) and that failure or omission to schedule a property in the case as projected by the petitioner in Ext.P3 herein can be incorporated by way of resort to amendment of the pleadings as envisaged under Order VI Rule 7 of the Code of Civil Procedure. The court below also noted that this is a case of the year 2011, which had been pending since then. The court below held that there is no formal defect in the framing of the suit and that the plea or omission to schedule a property as set out in Ext.P3 application is a matter, which should be at best left to resort of remedy for amendment of the pleadings. Accordingly, the court below dismissed Ext.P3 application as per impugned Ext.P4 order rendered on 22.6.2013 in I.A.No.2585/2012 in O.P.(F.C.)133/14 - : 3 :- O.P.No.83/2011. It is this order, viz., Ext 4, that is under challenge before us. The prayer of the petitioner is to set aside the impugned Ext.P4 order and to allow Ext.P3 application. 4. Heard Sri.S.Vinod Bhat, the learned counsel for the petitioner and Sri.K.R.Radhakrishnan Nair, the learned counsel for the respondent. 5. Order XXIII of the Code of Civil Procedure deals with the withdrawal and adjustment of suits. Order XXIII Rule 1(3) reads as follows: - “R.1. Withdrawal of suit or abandonment of part of claim.-(1) ...... - (3) where the Court is satisfied, - - (a) that a suit must fail by reason of some formal defect, or - (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.” ## Order XXII Rule 2 CPC reads as follows: “R.2. Limitation of law not affected by first suit.- In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.” It is by now well established that where the court is satisfied that a O.P.(F.C.)133/14 - : 4 :- suit must fail by reason of some formal defect, or there are sufficient grounds for allowing the plaintiff to institute a fresh suit, for the subject matter of a suit or part of a claim, it may grant permission to withdraw such suit or such part of the claim with liberty to file a fresh suit in respect of the subject-matter of such suit or such part of the claim on such terms as it thinks fit. The expression, “formal defect” mentioned in Order XXIII Rule1(3)(a), though not defined in the Code, connotes some defect of form or procedure not affecting the merits of the case, such as want of statutory notice under Section 80 of the CPC, mis-joinder of parties or of cause of action, non-payment of proper court fee or stamp fee, failure to disclose cause of action, mistake in not seeking proper relief, improper or erroneous valuation of the subject-matter of the suit, defect in the prayer clause, absence of territorial jurisdiction of the court etc. Reference in this connection can be made to the decision of the Apex Court in Beniram v. Gaind [(1981) 4 SCC 209 = AIR 1982 SC 789]. 6. It is now well settled that a defect affecting the merits of the case or a defect, which goes to the root of the plaintiff's case cannot be said to be a formal defect as those in non-joinder of O.P.(F.C.)133/14 - : 5 :- necessary party, omission to substitute legal representatives, omission to include all the causes of action in the plaint, bar of limitation, under-valuation of the subject matter of the suit, addition of a new factual plea, failure to bring legal representatives on record, etc. Order XXIII Rule 2 stipulates that a plaintiff withdrawing a suit with liberty to file a fresh suit is bound by the law of limitation in the same manner, as if the first suit has not been filed at all. The provisions in Section 14(3) of the Limitation Act, 1963 are also relevant in the context of the above said provision in Order XXIII Rule 2 CPC. Sec. 14(3) of the Limitation Act provides that notwithstanding anything contained in Rule 2 of Order XXIII of CPC, the provisions of sub section (1) of Sec. 14 of the Limitation Act shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of Order XXIII of CPC, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature. Explanation (c) appended under Section 14 of the Limitation Act provides that for the purposes of that section, misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. O.P.(F.C.)133/14 - : 6 :- ## 7. Order VI of CPC deals with “pleadings generally” and the provisions of Order VI Rule 17 CPC read as follows: “R.17. Amendment of pleadings.- 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; Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” The basic objective behind Order VI Rule 17 is that the court should try the merits of the cases that come before them and should consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties, provided that it does not cause injustice or prejudice to the opposite side. (See in this connection, Pirgonda Patil v. Kalgonda Patil [AIR 1957 SC 363]). The courts are empowered to permit amendment of pleadings in the larger interest of doing justice to the parties, as ultimately the courts exist for the purpose of doing justice between the parties and not for penalising them for hyper technical flaws. As held by Their Lordships in the Privy Council in the case Ma Shwe Mya v. Maung Mo Hnaug reported in AIR 1922 PC 249: “All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they O.P.(F.C.)133/14 - : 7 :- should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.” It can be seen that principles on the same lines have been enunciated by the Apex Court in Suraj Prakash v. Raj Rani [(1981) 3 SCC 652 at p.655]. Lord Justice Bowen in Cropper v. Smith [(1984) 29 ChD 700) has stated the underlying the object behind amendment of pleadings, as follows: “I think it is a well-established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace ...... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.” 8. Though Order VI Rule 17 CPC confers wide discretion on a court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms deems fit, such discretion must be exercised judicially and in accordance with well established O.P.(F.C.)133/14 - : 8 :- principles of law. Proviso to Rule 17 as inserted by the Amendment Act gives further restrictions on the power of the court in allowing amendment. As a general rule, leave to amend will be granted so as to enable the real question in issue between the parties to be raised in pleadings, where the amendment will occasion no injury to the opposite party and can be sufficiently compensated for by costs or other terms to be imposed by the order of the court. [see the decisions in Manohar Lal v. National Building Material Supply , reported in (1961) 1 SCC 869 p. 871, Harcharan v. State of Haryana reported in (1982) 3 SCC 408 p.p.411-12, N.S.S. Ltd. v. K.C.Alexander reported in AIR 1968 SC 1165, p. 1178, etc. ]. The well accepted general principle is that amendments could be allowed, subject to satisfaction of two conditions, viz., (i) of not working injustice to the other side and (ii) of being necessary for the purpose of determining the real question between the parties. Therefore, the main points to be considered before a party is allowed to amend his pleadings are firstly, whether the amendment is necessary for the determination of the real question in controversy; and secondly as to whether the amendment can be allowed, without injustice to the other side. It has thus been held O.P.(F.C.)133/14 - : 9 :- that where amendment is sought to avoid multiplicity of suits (L.J.Leach & Co. Ltd. v. Jairdine Skinner & Co. reported in AIR 1957 SC 357), or where the parties in the plaint are wrongly described [Jai Jai Ram Manohar Lal v. National Building Material Supply reported in (1969) 1 SCC 869] or where there is mistake in the statement of cause of action (or bona fide omission in making necessary averments in the plaint) (S.Rm Ar. S.Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramachandran Chettiar reported in AIR 1958 SC 245) or a suit is brought under a wrong act [(1969) 1 SCC 869) amendment of pleadings could be allowed. The second condition is also equally important as per which, no amendment should be allowed which causes injustice to the opposite party. The Apex Court in the case Ganga Bai v. Vijaya Kumar reported in (1974) 2 SCC 393, held that “the power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice.... But the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court.” It is by now well established by rulings of the court that ordinarily, the following principles should be borne in mind, while dealing with O.P.(F.C.)133/14 - : 10 :- ## applications for amendment of pleadings; - “(i) all amendments should be allowed which are necessary for determination of the real controversies in the suit; - (ii) the proposed amendment should not alter and be a substitute for the cause of action on the basis of which the original lis was raised; - (iii) inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment; - (iv) proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs; - (v) amendment of a claim or relief barred by time should not be allowed; - (vi) no amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time; - (vii) no party should suffer on account of technicalities of law and the amendment should be allowed to minimise the litigation between the parties; - (viii) the delay in filing petitions for amendments of pleadings should be properly compensated for by costs; - (ix) error or mistake which if not fraudulent should not be made a ground for rejecting the application for amendments of pleadings. - (x) The above principles are illustrative and not exhaustive.” 9. After consideration of the rival pleas in this case, we caution ourselves that the jurisdiction of superintendence available under Article 227 of the Constitution, is not an appellate jurisdiction and it is not fit and proper for us to sit in appeal over the O.P.(F.C.)133/14 - : 11 :- considered decision of the court below. That apart, from the materials on record and the pleadings in this case, we are also of the opinion that the view taken by the court below in the impugned order that the plea of the petitioner set up in Ext.P3 application regarding failure or omission to schedule the property in the case, is not a 'formal defect', as contemplated in Order XXIII Rule 1(3)(a) CPC is reasonable. The expression 'formal defect' appearing in Order XXIII Rule (1)(3)(a) basically connotes some defect of form or procedure not affecting the merits of the case, such as want of statutory notice under Section 80 of CPC, mis-joinder of parties etc. as stated earlier hereinabove. We also find that the view taken by the court below that the failure or omission to schedule the property in this case or in regard to necessary pleadings etc. can be remedied by taking resort to amendment of pleadings as envisaged in Order VI Rule 17 CPC, is also reasonable and proper. At any rate, the impugned view of the court below cannot be said to be vitiated by jurisdictional errors, perversity, etc. 10. Faced with this situation, Sri.S.Vinod Bhat, the learned counsel for the petitioner submitted that it is quite possible that the respondent herein may object to any application for amendment O.P.(F.C.)133/14 - : 12 :- that may be submitted by the petitioner herein on the ground of the proviso to Order VI Rule 17, which envisages that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not raise the matter before commencement of the trial. Sri.K.R.Radhakrishnan Nair, the learned counsel for the respondent fairly submitted that the trial has not commenced and that the case is only posted for trial and that the respondent would not raise any objection to any application for amendment of the pleadings with regard to the matters raised in Ext.P3, solely on the ground of proviso to the above said Rule 17 of Order VI CPC, and that if the pleas set up in the application for amendment cause any other serious prejudices or injustice to the respondent herein, then the respondent herein would be at liberty to stake any such tenable objections in that regard. 11. We record the submissions of both the parties. Accordingly, we find that there is no error of law or illegality committed by the court below in passing the impugned order as per Ext.P4 and no interference is called for by invoking our visitorial jurisdiction of superintendence conferred under Article 227 of the O.P.(F.C.)133/14 - : 13 :- Constitution of India. However, before departing from this case, we observe that in case the petitioner files an appropriate application for amendment of the pleadings with regard to the matters raised in Ext.P3 herein within a period of two weeks from the date of receipt of a copy of this judgment, then the court below shall endevour to expeditiously pass orders on the said amendment application, after granting reasonable opportunity to both sides, including the opportunity to the respondent herein to file necessary objections to the said application. With these observations, this Original Petition stands dismissed. Sd/- V.K.MOHANAN, JUDGE sdk+ Sd/ALEXANDER THOMAS , JUDGE ///True copy/// P.S. to Judge O.P.(F.C.)133/14 - : 14 :-