OP(C) NO. 1181 OF 2022

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944 ``` ## **`OP(C) NO. 1181 OF 2022`** ## **`IN OS 966/2010 OF PRINCIPAL SUB COURT, THRISSUR`** ## **`PETITIONER:`** ``` KARTHIKEYAN@DASAN AGED 52 YEARS S/O. KALLYANI, KALARICKAL HOUSE, ADATT VILLAGE & DESOM, THRISSUR DISTRICT, PIN - 680551 ``` ``` BY ADVS. ARUN KUMAR.P THIYYANNOOR RAMAKRISHNAN AMBIKA RADHAKRISHNAN NARAYANAN M.K. ``` ## **`RESPONDENTS:`** ``` 1RENUKA AGED 39 YEARS D/O. KALARICKAL SIVARAMAPANICKER, POTTORE VILLAGE & DESOM, THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680581 2RATHEESH AGED 37 YEARS S/O. KALARICKAL SIVARAMAPANICKER, POTTORE VILLAGE & DESOM, THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680581 ``` ``` 3MOOKAMI@MOOKAMBIKA (DIED) AGED NOT KNOWN, D/O. KUNJIKRISHNAPANICKER, KALARICKAL HOUSE, VELLAMGALLUR DESAM VADAKKUMKKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN - 680662 ``` ``` 4SARASWATHY AGED 67 YEARS W/O. G RAVINDRAN, MURIYANKULANGARA HOUSE, MIDHULA, PALINJODE, VAIKAM, KOTTAYAM DISTRICT, PIN - 686141 ``` ``` 5USHAKUMARI AGED 47 YEARS W/O. KARTHIKEYAN@DESAN, KALARICKAL HOUSE, ADATT VILLAGE ``` ## **`OP(C) NO. 1181 OF 2022 2`** - `& DESOM, THRISSUR DISTRICT, PIN - 680551` - `6 BHARATHEEYA CHARITABLE EDUCATION TRUST ADATT, THRISSUR DISTRICT, PIN - 680551` - `7 KOMALAM AGED 69 YEARS W/O. RAVINDRAN, KALARICKAL HOUSE, THRITHALLUR P.O., THRITHALLUR VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680619` - `8 HARIDAS AGED 65 YEARS S/O. VELAPPAKURUP, PADINJATTEDATH KALARICKAL HOUSE, VELLANGALLUR DESOM VADAKKUMKKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTICT, PIN - 680662` - `9 SYAMALA AGED 60 YEARS` ``` W/O. PUSHPAN, AMBALLI KALARICKAL HOUSE, ALAGAPPA NAGAR AMBALLUR VILLAGE, THRISSUR DISTRICT., PIN - 680302 ``` - `10 MURALEEDHARAN AGED 57 YEARS` - `S/O. VELAPPAKURUP, PADINJATTEDATH KALARICKAL HOUSE, VELLAMGALLUR DESOM, VADAKKUMKKARA VILLAGE, MUKUNDAPURAM TALUK, VELAPPAKURUP , THRISSUR DISTRICT, PIN - 680662` - `11 SHINY AGED 40 YEARS` ``` W/O. HARIDAS, KALARICKAL HOSUE, KALLORMA, NANNAMMUCK P.O. & VILLAGE, MALAPPURAM DISTRICT, PIN - 679574 ``` - `12 NISHA AGED 37 YEARS W/O. VENU, VELUR KALARICKAL HOUSE, VELUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT PIN - 680601` - `13 LEELA P. PANICKER AGED NOT KNOWN, W/O. PRABHAKARA PANICKER, ADAT VILLAGE & DESOM, THRISSUR TALUK, THRISSUR DISTRICT PIN - 680551` - `14 BEENA` ## **`OP(C) NO. 1181 OF 2022 3`** ``` AGED 42 YEARS ``` ``` W/O. PUNNUR KALARICKAL PREMACHANDRAN, D/O. PRABHAKARA PANICKER, POTTOR, THRISSUR DISTRICT,PIN - 680581 ``` ``` 15BINDHU AGED 39 YEARS ``` ``` D/O. PRABHAKARA PANICKER, ADAT VILLAGE, & DESOM, THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680551 ``` ``` 16BINI AGED 37 YEARS D/O. PRABHAKARA PANICKER, ADAT VILLAGE, & DESOM, THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680551 ``` ``` 17BIJI ``` ``` AGED 33 YEARS ``` ``` D/O. PRABHAKARA PANICKER, ADAT VILLAGE, & DESOM, THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680551 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 1181 OF 2022 4 ``` ## **Dated this the 11[th] day of July, 2022** ## **JUDGMENT** The original petition is filed to set aside the order dated 14.12.2021 in IA No.5/2020 in OS No.966/2010 of the Court of the Principal Subordinate Judge, Thrissur. 2. The petitioner's case, in brief, relevant for the determination of the original petition is that, he is the third defendant in the above suit, which is filed by the respondents 1 and 2, seeking a decree of partition. The respondents 3 to 17 are the other defendants in the suit. The 3[rd] respondent had filed Ext.P2 written statement refuting the allegations in the Ext.P1 plaint, inter alia, contending that item No.1 of the plaint schedule property is not partible, because his mother had obtained a purchase certificate in respect of the said property, and, subsequently, she assigned the property in favour of the 4[th] respondent, who in turn has assigned the property in favour of the 5[th] respondent. Then, the respondents 1 and 2 have filed Ext.P3 application, seeking leave to amend ``` OP(C) NO. 1181 OF 2022 5 ``` Ext.P1 plaint by incorporating a relief that the purchase certificate obtained by the petitioner’s mother would enure to the benefit of other co-owners. Even though the petitioner had filed Ext.P4 counter statement opposing Ext.P3 application, the court below has by the impugned Ext.P5 order, allowed Ext.P3. Ext.P5 is erroneous and wrong. Hence, the original petition. 3. Heard; Sri.Arun Kumar P, the learned counsel appearing for the petitioner. 4. The short point that arises for consideration in this original petition is whether there is any error in ExtP5 order passed by the court below. 5. Undisputedly, Ext.P1 has been filed by the respondents 1 and 2, seeking a decree of partition. The same has been opposed by the petitioner, who has filed Ext.P2 written statement, wherein the petitioner has raised a contention that item No.1 of the plaint schedule property is not partible, on the ground that his mother had obtained a purchase certificate in her name and on that strength she had bequeathed the properties to the ``` OP(C) NO. 1181 OF 2022 6 ``` petitioner who in turn assigned the property to the 4[th] respondent and who in turn assigned the property to the 5[th] respondent. Then, the respondents 1 and 2 have filed Ext.P3 application, seeking to incorporate a relief that the purchase certificate obtained by the petitioner’s mother would enure to the benefit of all the co-owners. The same has been opposed by the petitioner by filing Ext.P4 counter affidavit stating that the proposed amendment is highly belated and that it would change the character of the suit. The court below, after appreciating Exts.P3 and P4, by the impugned Ext.P5 order, has granted leave to amend the pleadings as sought for in Ext.P3. 6. The law with respect to amendment of pleadings is fairly well settled. The Honourable Supreme Court in **Rajeshkumar Aggarwal and others v. K.K.Modi and others** [2006 (4) SCC 385] has held that merits of a pleading that is sought to be incorporated, by way of amendment, need not be adjudicated at the stage of considering the application for amendment. 7. This Court in **Saidinnisha v. Abdul Vahab** [2018 ## **`OP(C) NO. 1181 OF 2022 7`** (3) KLT 449] has held that amendment of pleadings should be allowed which are for the necessary determination of real controversies in the suit so as to avoid multiplicity of proceedings. Even if there is a contention that the relief sought for is barred by limitation, the same can be considered by the court below at the time of determination of the suit. Also, when a prayer seeking leave to amend the pleadings is made, a liberal approach has to be adopted instead of by a hyper technical stand. 8. Going by the reasons stated in Ext.P3 application and the pleadings sought to be incorporated, I completely concur with the finding of the court below that the proposed amendment will not change the nature of the suit. Even otherwise, the petitioner would be at liberty to file his additional written statement to the amended plaint and also raise all possible contentions at the time of trial. I do not find any error or illegality in Ext.P5 order passed by the court below warranting interference by this Court in exercise of its supervisory jurisdiction of ``` OP(C) NO. 1181 OF 2022 8 ``` this Court under Article 227 of the Constitution of India. The original petition is meritless and is hence dismissed. **Sd/-** **C.S.DIAS, JUDGE** rmm12/07/2022 ## **`OP(C) NO. 1181 OF 2022 9`** ## **`APPENDIX OF OP(C) 1181/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE PLAINT IN O.S. NO. 966/2010 FILED BEFORE THE SUB COURT THRISSUR ``` ``` Exhibit P2TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER WHO IS THE 3RD DEFENDANT IN O.S. NO. 966/2010 ON THE FILE OF PRINCIPAL SUB COURT THRISSUR ``` ``` Exhibit P3TRUE COPY OF THE AMENDMENT PETITION FILED AS I.A. NO. 5/2020 IN O.S. NO. 966/2010 ON THE FILE OF PRINCIPAL SUB COURT THRISSUR ``` ``` Exhibit P4TRUE COPY OF THE OBJECTION DATED 12-09- 2020 FILED BY THE PETITIONER TO EXT.P1 AMENDMENT APPLICATION IN I.A NO.5/2020 IN O.S NO. 966/10 ``` ``` Exhibit P5TRUE COPY OF THE ORDER DATED 14TH DECEMBER, 2021 IN I.A. NO. 5/2020 IN O.S. NO. 966/2010 OF THE PRINCIPAL SUB JUDGE, THRISSUR ```