OP(C) No. 2428 of 2014 (O)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN FRIDAY, THE 24TH DAY OF OCTOBER 2014/2ND KARTHIKA, 1936 OP(C).No. 2428 of 2014 (O) --------------------------AGAINST THE ORDER IN I.A.2613/2013 IN OS 433/2012 of SUB COURT,IRINJALAKUDA. PETITIONER(S)/RESPONDENTS 1, 4 & 5 IN I.A.: ------------------------------------------- 1. ROSE AGED 53 YEARS, W/O.THOMAS, CHERADAI HOUSE, AVITTATHOOR DESOM, KADUPPASSERY VILLAGE, MUKUNDAPURAM TALUK, TRICHUR DISTRICT, PIN 680 683. 2. GIGI, AGED 43 YEARS, (WRONGLY SPELT AS JIJI IN THE IMPGUNED ORDER) W/O.C.C.JOSHY, CHERADAI HOUSE, KOTTANELLOOR VILLAGE, KOTTANELLOOR DESOM, MUKUNDAPURAM TALUK, TRICHUR DISTRICT, PIN 680 662. 3. JENNY AGED 49 YEARS, W/O.A.J.DAVIS, ARANGASSERY HOUSE, THACHUDAPARAMBU DESOM, WEST CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, TRICHUR DISTRICT , PIN 680 722. BY ADV. SRI.P.M.MOHAMMED SHIRAZ RESPONDENT(S/PETITIONER & RESPONDENTS 2 & 3 IN I.A.: ----------------------------------------------------- 1. MINI, AGED 48 YEARS, D/O.DEVASSY, CHELLAKUDAM PALLIPPURAM DESOM, PALLIPPURAM VILLAGE, MALA, KODUNGALLOOR TALUK, TRICHUR DISTRICT, PIN 680732. 2. C.C.ANTO, AGED 54 YEARS, S/O.LATE C.O.CHAKKUNNI PERMANENT RESIDENCE AT CHERADAL HOUSE KOTTANELLOOR VILLAGE, KOTTANELLOOR DESOM MUKUNDAPURAM TALUK, TRICHUR DISTRICT, PIN 680 662, PRESENTLY RESIDING AT ROOM NO. 409.BUILDING NO.1, B WING, 4TH FLOOR, POWAL VIHAR, OPPOSITE POWAL LAKE, MUMBAI , PIN 400 076. 3. ANNIE, AGED 53 YEARS, W/O.C.C.ANTO, PERMANENT RESIDENCE AT CHERADAI HOUSE, KOTTANELLOOR VILLAGE, KOTTANELLOOR DESOM, MUKUNDAPURAM TALUK, TRICHUR DISTRICT, PIN 680 662 PRESENTLY RESIDING AT ROOM NO. 409.BUILDING NO.1 B WING, 4TH FLOOR, POWAL VIHAR, OPPOSITE POWAL LAKE, MUMBAI , PIN 400 076. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2428 of 2014 (O) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------ EXHIBIT P1 COPY OF THE PLAINT IN OS NO. 433/2012 EXHIBIT P2 COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM IN OS NO.433/2012 EXHIBIT P3 COPY OF THE REPLICATION FILED BY THE PLAINTIFF IN OS 433/2012 EXHIBIT P4 COPY OF PETITION FOR AMENMENT IA NO.2613/2013 EXHIBIT P5 COPY OF COUNTER AFFIDAVIT IN IA NO.2613/2013 EXHIBIT P6 COPY OF THE ORDER DATED 23/5/2014 IN IA NO.2613/2013 IN OS NO. 433/2012 RESPONDENT(S)' EXHIBITS ------------------------ ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - O.P.(C) No. 2428 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of October, 2014. ## **JUDGMENT** The petitioners challenge Ext.P6 order by which the lower court allowed the application filed to amend the plaint to incorporate certain corrections in the description of the property in the plaint which according to the petitioners, has far reaching consequences and will have the effect of taking away the contentions that are available to them to show that the plaintiff in the suit is totally unaware of the details of the property. 2. The facts absolutely necessary for the disposal of this petition are as follows: The plaintiff instituted O.S. 433 of 2012 before Sub Court, Irinjalakuda claiming 1/6[th] share in the suit property. The defendants resisted the suit by pointing out that the plaintiff had no manner of right over the property and she is OP.(C). 2428/2014. 2 only a name lender and she is only in the position of the trustee. The defendants also filed a counter claim in respect of the property. After the counter claim was filed and replication was filed, the plaintiff came forward with an amendment application seeking to incorporate the details of the property like survey number etc. in the plaint which according to the plaintiff she had omitted to incorporate at the first instance. The court below by the impugned order allowed that application. 3. Learned counsel appearing for the petitioners pointed out that the court below was not justified in allowing the amendment application especially in view of the fact that it has the effect of taking away the contentions which the defendants have against the plaintiff to show that she has no right over the property. Further, it is contended that even assuming that the amendment could have been allowed, it 3 OP.(C). 2428/2014. could not relate back to the date of filing of the plaint but only from the date of the order allowing the amendment application. The third limb of the contention is that the order passed is thoroughly unsatisfactory in view of the objections raised by the respondents which have not even been adverted to and that alone is sufficient to interfere with the order. 4. Of course, among the three contentions raised, the third contention has considerable force. But the question is whether that has caused any prejudice to the defendants. It is true that while allowing the amendment application, the court below ought to have considered the objections raised by the respondents and passed a reasoned order. But that has not been done. But the question is whether that is sufficient to interfere with the order under challenge. 5. The plaintiff laid claim to the suit property claiming 1/6[th] share. The case of the contesting defendants is OP.(C). 2428/2014. 4 that she has no right over the property and she is only in the position of a trustee. Though her name figures in the document, she has no right in the property. The defendants also filed a counter claim in which they pointed out that the plaintiff is not even aware of the details of the plaint schedule property and she has no right over the property. They made mention of certain details which according to them would be sufficient to show that the plaintiff is totally ignorant about the details of the property. 6. After the counter claim was filed and a replication was filed by the plaintiff, the plaintiff filed an application for amendment seeking to incorporate certain details regarding the property. 7. The petitioners herein have no case that by allowing the amendment, the identity of the property is sought to be changed. Their contention seems OP.(C). 2428/2014. 5 to be that that would take away their contention that the plaintiff was totally ignorant about the property and she had no knowledge about either the nature of the property or the extent of the property or where the property was located. 8. It must be remembered here that the plaintiff lays claim to the suit property by virtue of a document. The contesting defendants have no case that by virtue of the amendment of the plaint, either the property is sought to be changed or a different property is sought to be substituted or the property over which she laid claim is a different property. The property remains the same. May be the extent is different. But there is no dispute regarding the identity of the property at all. 9. As regards the contention that defence of the defendants to the effect that the plaintiff is totally ignorant of the details of the property is denied, it is found that it is not OP.(C). 2428/2014. 6 wiped away by allowing the amendment of the plaint and it is open to the defendants at the time of examination of the plaintiff to confront her with the details. 10. Learned counsel for the petitioner relied on the decisions reported in Subramanian v. Aboobacker Koya (2003 KHC 1199) and North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (2008 KHC 4570) for the position that amendment ought not to have been allowed. In the decision reported in North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (2008 KHC 4570) the court was considering whether an amendment at the second appellate stage is proper and in that context it was observed as follows: “15. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 R.17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. Postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. OP.(C). 2428/2014. 7 Kalgonda Shidgonda Patil and Others which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.” ## 11. In the decision reported in Subramanian v. Aboobacker Koya (2003 KHC 1199) it was held as follows: “Therefore, though the order does not in so many words stated that the amendment will relate from the date of the amendment only and not to the date of filing of the plaint, the intention was not to deny the valuable right of plea of limitation by the allowing of the amendment. Now, it cannot be said that in all cases the amendment will relate back to the date of filing of the suit. It is open to the Court ordering amendment to specify that it will not relate back to the date of plaint so OP.(C). 2428/2014. 8 as to affect the defence of limitation available to the defendant.” 12. It can be seen on a reading of the above decisions that they can have no application to the facts of the case. In the first of the cases, the amendment was highly belated and the rights have to be decided earlier. In the second decision referred to by the learned counsel, the question was considered vis a vis the question of limitation and it was in that context the observations were made. 13. In the case on hand, there is no question of limitation regarding the amendment sought to be incorporated in the plaint. The grievance of the respondents therein seems to be that by allowing the amendment the court below did not specify whether the amendment will relate back to the date of the plaint, and that will affect the contention of the defendants that the plaintiff is unaware of the details of the property. OP.(C). 2428/2014. 9 14. It is difficult to accept the above plea. The fact remains that in the plaint filed by the plaintiff several of the details were conspicuously absent and that were sought to be filled up after the counter claim was made. It will be certainly open to the defendants to confront the plaintiff with those facts and establish that she was unaware of the details until the counter claim was filed. Viewed from that angle, there is no prejudice caused to the defendants. 15. However, this Court has to necessarily observe that the way in which the amendment application was allowed by the court below is thoroughly unsatisfactory. The court below ought to have considered the rival contentions raised by the parties. However, for the absence of reasons and non-consideration of the rival contentions, the order need not be interfered with since no serous prejudice is caused by the allowing of the amendment application. OP.(C). 2428/2014. 10 The result is that, this Court finds no merit in this Original Petition. It is accordingly dismissed. Learned counsel for the petitioners then pointed out that in case this Court is inclined to uphold the order, the defendants should be given an opportunity to file additional written statement. That option is certainly available to the defendants. P. BHAVADASAN, JUDGE sb.