O.P.(C) No. 1436 of 2016: Mariyakutty Chacko v. Rosamma Mattathil and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938** ## **OP(C).No. 1436 of 2016 (O)** **--------------------------I.A. NO.168/2016 IN O.S. NO.47/2015 OF SUB COURT, PALA. ......** **PETITIONER(S):** **-----------------------** **MARIYAKUTTY CHACKO, AGED 88 YEARS, W/O.CHACKO, MATTATHIL VEETTIL, KESHUVAMKULAM KARA, CHERPUNKAL P.O., KOTTAYAM DISTRICT.** **BY ADVS.SRI.SUNIL CYRIAC, SMT.MABLE.C.KURIAN.** - **RESPONDENT(S): -------------------------1. ROSAMMA MATTATHIL, W/O.SUNNY, GASSERGASSE 19/2/7 1050, VIENNA, AUSTRIA, EUROPE, FROM MATTATHIL VEETTIL, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER, NOHA THOMAS, PULLAT HOUSE, KADAVANTHARA PO, PIN -682 020.** - **2. ALVIN MATTATHIL, S/O.SUNNY, GASSERGASSE 19/2/7 1050, VIENNA, AUSTRIA, EUROPE, FROM MATTATHIL VEETTIL, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER, NOHA THOMAS, PULLAT HOUSE, KADAVANTHARA PO, PIN -682 020.** - **3. ANAND MATTATHIL S/O.SUNNY, GASSERGASSE 19/2/7 1050, VIENNA, AUSTRIA, EUROPE, FROM MATTATHIL VEETTIL, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER, NOHA THOMAS, PULLAT HOUSE, KADAVANTHARA PO, PIN -682 020.** ## **OP(C).No. 1436 of 2016 (O)** **4. ANJALI (MINOR GIRL), D/O.SUNNY, GASSERGASSE 19/2/7 1050, VIENNA, AUSTRIA, EUROPE, FROM MATTATHIL VEETTIL, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, REPRESENTED BY NEXT FRIEND AND GUARDIAN, MR. AUGUSTINE @ APPACHAN, NADACKAL HOUSE, RAMAPURAM P.O., PIN -686 576, KOTTAYAM DISTRICT.** **R1 TO R3 BY ADV. SRI.PAUL K.VARGHESE.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **OP(C).No. 1436 of 2016 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **P1 TRUE COPY OF THE PLAINT DATED 17.06.2015 IN OS.NO. 47/2015 FILED BY THE RESPONDENTS BEFORE THE SUB COURT, PALA.** **P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 06.10.2015 IN OS.NO. 47/2015 FILED BY THE PETITIONER BEFORE THE SUB COURT, PALA.** **P3 TRUE COPY OF THE IA.NO. 168/2016 IN OS.NO. 47/2015 DATED 23.05.2016 FILED BY THE PETITIONER BEFORE THE SUB COURT, PALA.** **P4 TRUE COPY OF THE OBJECTION DATED 26.05.2016 IN IA.NO. 168/2016 IN OS.NO. 47/2015 FILED BY THE RESPONDENTS BEFORE THE SUB COURT, PALA.** **P5 TRUE COPY OF THE ORDER DATED 31.05.2016 IN IA.NO. 168/2016 IN OS.NO. 47/2015 OF THE SUB COURT, PALA.** **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **K. HARILAL, J.** ## **= = = = = = = = = = = = = = = = = = = =** ## **O.P.(C) No. 1436 of 2016** **- - - - - - - - - -- - - - - - - - - - - - - -** Dated this the 21st day of June, 2016 ## **J U D G M E N T** The petitioner is the defendant and the respondents are the plaintiffs in O.S.No.47/2015 on the files of the Sub Court, Pala. The above suit was filed by the respondents herein, seeking recovery of possession and incidental reliefs. The 1[st] respondent is the divorced wife of the petitioner's deceased son, late Sunny Mattathil and the respondents 2 to 4 are their children. This Original Petition (Civil) is filed challenging the dismissal of I.A.No.168/2016 in O.S.No.47/2015, praying to amend the written statement by incorporating a counter claim, by Ext.P5 order of the Sub Court, Pala. The legality and propriety of the reasonings; whereby the court below dismissed the said Interlocutory Application, are under **O.P.(C) No. 1436 of 2016** **-: 2 :-** challenge in this Original Petition (Civil). 2. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents. 3. It stands undisputed that in the written statement filed by the petitioner, she raised a contention that for making improvements in the property and to meet the expenses incurred for the treatment of her deceased son Sunny Mattathil, she was constrained to borrow an amount of `15 lakhs. So, she has a right to realise the said amount by making charge over 'A', 'B', 'D' schedule properties. But, subsequently, in the above application, she sought for an amendment in the written statement by way of counter claim demanding the said `15 lakhs spent for making improvements and ## **O.P.(C) No. 1436 of 2016** ## **-: 3 :-** the medical treatment of the late Sunny. After considering the nature of the matters sought to be incorporated by way of counter claim, the court below arrived at a finding that the said petition is ill-motivated and liable to be dismissed. 4. As regards the amendment in the original written statement, the principle laid down by judicial precedents is that where facts pleaded in the original written statement make out the substance referring to the factual foundation in the counter claim, such an amendment is to be allowed. In the instant case, it could be seen that the petitioner has already laid down a foundation in the written statement that she had borrowed an amount of `15 lakhs and spent for making improvements in the property and the treatment of her deceased son Sunny ## **O.P.(C) No. 1436 of 2016** ## **-: 4 :-** and she has the right to claim the said amount by way of charge over the property. 5. Going by the counter claim, it is seen that the petitioner prayed for a decree, permitting her to realise an amount of `15,00,000/-, which she had spent earlier for making improvements in the property and the treatment of her son, 'Sunny' from the schedule properties in the counter claim. This Court finds that matters sought to be introduced, by way of counter claim is not a new matter, which would alter the nature of the pleadings in the written statement. It is only an addition to the earlier foundation laid down in the written statement. Thus, the counter claim sought to be incorporated is reasonable and justifiable, in view of the parameters laid down for making amendment in **O.P.(C) No. 1436 of 2016** ## **-: 5 :-** the pleadings. What remains to be considered is, whether there is sufficient reason for delay in making such an application in a belated stage, particularly, when the suit was posted for trial? 6. It stands admitted that the trial has not actually commenced so far; but when the case stood posted for trial on 21.05.2016, the petitioner sought for time to make amendment in the pleadings and the court below adjourned the case to 23.05.2016 and thereafter, posted on 10.06.2016. The petitioner filed the present application, seeking amendment on 23.05.2016, i.e., after the date originally fixed for starting trial. In _**Neelakandan Nair v. Parameswara Kurup**_ [2003(3) KLT 900] the Supreme Court had held that commencement of trial means and indicates the date of actual trial or adducing of ## **O.P.(C) No. 1436 of 2016** ## **-: 6 :-** evidence. So, the present application is not one filed before the commencement of trial. 7. This Court finds that unexpected adjournments of the cases at the instance of the petitioner caused inconvenience and difficulty to the respondent and there is some negligence on the part of the petitioner, in filing the petition in a belated stage, instead of filing the same, when the case stood posted for pre-trial steps. In the above view, certainly, the petitioner has to compensate the respondent, by way of paying cost. Consequently, Ext.P5 will stand set aside on a condition that the petitioner shall pay a cost of `15,000/-(Rupees fifteen thousand only) to the 1[st] respondent or her counsel, within a period of 'two weeks' from the date of receipt of a copy of this judgment, failing ## **O.P.(C) No. 1436 of 2016** ## **-: 7 :-** which Ext.P5 will stand in force, as such. On compliance of the said condition, Interlocutory Application No.168 of 2016 will stand allowed and the trial court shall take steps to effect the amendment on record and proceed accordingly. The trial court shall dispose the case, after trial within a period of 'three months' from today. This Original Petition (Civil) is disposed of accordingly. Nan/DST Sd/- **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**