O.P.(C) No. 530 of 2024

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN`** ``` THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 ``` ``` OP(C) NO. 530 OF 2024 ``` ``` ORDER DATED 24.01.2024 IN IA 8 OF 2023 IN OS NO.451 OF 2018 ``` ## **`OF MUNSIF COURT, KUTHUPARAMBA PETITIONERS / RESPONDENT NO.3/DEFENDANT NO.3:`** ``` 1KOKKODAN OMANA AGED 51 YEARS D/O. O.T.NANU NAMBIAR, VATTAPPOYIL HOUSE, THOLAMBRA AMSOM, DESOM, THALASSERY TALUK, KANNUR DISTRICT., PIN – 670 702 ``` - **`2 KOKKODAN SASICHANDRAN AGED 48 YEARS`** ``` S/O. O.T.NANU NAMBIAR, TEACHER, PAINGOTTU CHAL HOUSE, KOLAYAD AMSOM, ALACHERY DESOM, THALASSERY TALUK, KANNUR DISTRICT., PIN – 670 650 BY ADV R.SURENDRAN ``` ## **`RESPONDENTS / PETITIONER/PLAINTIFF:`** - **`1 KOKKODAN RAVEENDRAN AGED 56 YEARS`** - **`S/O. O.TNANU NAMBIAR, PAINGOTTU CHAL HOUSE, KOLAYAD AMSOM, ALACHERY DESOM, THALASSERY TALUK, KANNUR DISTRICT., PIN – 670 650`** - **`2 KOKKODAN SULOCHANA AGED 60 YEARS`** - **`D/O.O.T. NANU NAMBIAR, MANASA, VEKKALAM AMSOM, VAYANNOOR DESOM, THALASSERY TALUK, KANNUR DISTRICT., PIN – 670 650`** - **`3 KOKKODAN RADHA AGED 57 YEARS D/O. O.T. NANU NAMBIAR, SREENILAYAM, ERATTENGAL, SIVAPURAM AMSOM, MALUR DESOM, MALUR.P.O, THALASSERY TALUK, KANNUR DISTRICT., PIN – 670 702`** O.P(C).No. 530 of 2024 2 |**`4`**|**`BRANCH MANAGER, KERALA GRAMIN BANK`**| |---|---| ||**`KOLAYAD BRANCH, KOLAYAD AMSOM DESOM, KOLAYAD.P.O,`**| ||**`THALASSERY TALUK, KANNUR DISTRICT., PIN – 670 643`**| |**`5`**|**`SECRETARY, KOLAYAD SERVICE CO-OP BANK LTD,`**| ||**`KOLAYAD AMSOM DESOM, KOLAYAD.P.O, THALASSERY`**| ||**`TALUK, KANNUR DISTRICT., PIN – 670 643`**| ||**`BY ADVS.`**| ||**`N.ASHOK KUMAR`**| ||**`ARJUN S.KURUPP(K/114/2023)`**| ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P(C).No. 530 of 2024 3 ## **`JUDGMENT`** ## **`Dated, this the 7[th] day of March 2024`** ``` This Original Petition is preferred by the 3rd defendant in the suit, O.S.No.451/2018, pending before the Munsiff Court, Kuthuparamba challenging Ext.P9 order, which allowed Ext.P7 amendment application. ``` ``` 2.Heard the learned counsel for the petitioner and the respondent. ``` ``` 3.Learned counsel for the petitioner would submit that the suit was originally filed for partition of the plaint schedule property (a sum of Rs.33,20,946) into 5 equal shares and for allotment of one such share to the plaintiff. The said Rs.33.20 lakhs is made up of two items, the first of which is a depositofRs.30 lakhsintheKerala ``` O.P(C).No. 530 of 2024 4 ``` Gramin Bank, Kolayad branch; and the second, is another deposit of Rs.3,20,946 in the Kolayad Service Cooperative Bank, which banks have been impleaded as defendants 5 and 6 in the suit. Defendants 3 and 4, the petitioners herein, filed a joint written statement. The trial commenced on 10.01.2023, on which date, the plaintiff was examined as PW1 and Exts.A1 to A4 were marked. The plaintiff was examined in cross as well. On 25.01.2023, the plaintifffiled I.A.No.6/2023(Ext.P3) seeking amendment of the plaint. Instead of the relief for partition, the relief for mandatory injunction, directing the fourth defendant to pay the share of the amount due to the plaintiff was sought to be incorporated. Ext.P3 application was opposed by present petitioners. However, the same was allowed, vide Ext.P5. Ext.P5 was challenged before this court in O.P.(C).No. 402/2023 by defendants 3 and 4 (the petitioners herein). The said Original Petition was ``` 5 O.P(C).No. 530 of 2024 ``` allowed and Ext.P5 was set aside, vide Ext.P6 order. Ext.P6 reserved the right of the plaintiff to incorporate the relief for declaration, as also, for recovery of the share of amount due to the plaintiff. Thereafter, Ext.P7 application was filed seeking amendment to incorporate a prayer for declaration that the plaintiff is entitled to 1/5 share of the total deposit found in the name of his father, which amount was received and kept by the fourth defendant. A consequential direction was also sought for to the fourth defendant to give Rs.6,44,304, being the share of the amount due to the plaintiff, together with interest @ 12 % per annum from the date of the suit. Ext.P7 was objected to by filing Ext. P8. However, in disregard of the objection, Ext.P7 amendment application has been allowed vide Ext.P9, is the submission made by the learned counsel for the petitioner. The petitioner seeks to assail Ext.P9 on four grounds, which are referred to herebelow. ``` O.P(C).No. 530 of 2024 6 ``` The first is that the amendment has drastically changed the frame and nature of the suit. The second is that it causes prejudice to the petitioners herein. The amendment sought for is hit by the proviso to Order 6, Rule 17, coupled with a contention that no reason, whatsoever, has been stated for filing an application for amendment, after commencement of the trial, is the third ground. Finally, it was contended that the amendment sought for is barred by the law of limitation. ``` ``` 4.Learned counsel would rely upon a recent judgmentofHonorableSupremeCourtin Basavaraj V. Indira[2024 KLT Online 1140 (SC)] in support of the proposition that an amendment, which is barred by Law of Limitation, and which fundamentally changes the nature and character of the suit, cannot be allowed. ``` 7 O.P(C).No. 530 of 2024 ``` 5.Per contra, learned counsel for the respondent would submit that the fact that the fourth defendant received the amount in fixed deposit in his capacity as a nominee came to the knowledge of the plaintiff only when the reply notice dated, 10.05.2018 was issued, in answer to the lawyer’s notice issued by the plaintiff. The contention in the written statement is more or less to the effect that the nominee stands in the footing of a legatee under the Will, who is entitled to appropriate unto himself the amounts which he received as a nominee. According to the learned counsel, the exact amount which was left by their late father was known only when the bank officials produced records. It is accordingly that Ext.P3 amendment was sought for. Although, Ext.P6 order of this court set aside Ext.P5 order (which allowed Ext.P3 amendment), the right of the plaintiff to incorporate the relief for declaration and also for recovery of the due share oftheamountwasreservedinExt.P6 ``` O.P(C).No. 530 of 2024 8 ``` judgment. According to the learned counsel, Ext P7 amendment application was filed accordingly and the same was rightly allowed by Ext.P9 order. Learned counsel would contend that the no interference, whatsoever, is warranted to Ext.P9. ``` ``` 6.Having heard the learned counsel appearing for the respective parties, this court will address the contentions raised. The objection that the amendment seeks to incorporate a time barred relief will be dealt with the first. The law is settled that an amendment seeking to incorporate a time barred relief is not liable to be dismissed in all cases. The issue received consideratiion of the Privy Council in Charandasv. Amir Khan[AIR 1921 PC 50], wherein it was held that, in cases where the special circumstances of the case outweighs the consideration of taking away a legal right which accrued to the defendant by lapse of time, amendment which are apparently barred by the law of ``` O.P(C).No. 530 of 2024 9 ``` limitation can also be considered. The issue fell for consideration of Honorable Supreme Court in LJ Lea ch and Co Ltd v.Jardine Skinner and Co [AIR 1957 SC 357], more pertinently in A.K.Gupta and S ons Ltd v. DamodarPP Valley Corporation [AIR 1967 SC 96], in Ganga Baiv. VijayaK umar [(1974) 2 SCC 393] in V ineet Kumarv.Mangal Sain Wadhera [AIR 1985 SC 817], in R a ghu Thilak D.John v. S. Rayappan & Ors [(2001) 2 SCC 472], inB.K. NarayanP illai v. Parameswaran Pillai [2000 (1) KLT 274 (SC); (2000 (1) SCC 712], inPankaja and Anotherv.Yellappa (Dead) by LRs and Others [(2004) 6 SCC 415] and recently in, Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another [(2022) SCC online SC 1128]. The legal position that can be culled out from the above decisions is that amendment is liable to be allowed, if the same is required for the effective and proper adjudication of the controversy between the parties and to avoid multiplicityofproceedings. Wherethe ``` ## O.P(C).No. 530 of 2024 10 ``` aspect of delay is arguable, the prayer for amendment has to be allowed. One important aspect to be borne in mind is that, when the amendment seeks to bring in something, which is already in substance in the pleading, the same is liable to be considered favorably. ``` ``` 7.In the light of the above discussion, this court would conclude that the law on the point is not to the effect that all amendments which are apparently barred by the law of limitation should necessarily be dismissed. ``` ``` 8.Coming to Basavaraj(supra) relied upon by the learned counsel for the petitioner, this court notice that the suit was originally for partition and by virtue of amendment, the relief for declaration that a compromise decree is null and void is sought for, therein. It is such circumstances that the Honorable Supreme Court held ``` O.P(C).No. 530 of 2024 11 ``` that the same would certainly change the nature of the suit and will cause prejudice to the appellant in that case. In the instant facts, this court notice that the suit, as originally framed, was one for partition of the amounts in fixed deposit left by the father of petitioners and respondents herein. When the plaintiff came to know that the amount has been received by the 4th defendant (one among the petitioners herein) in his capacity as the nominee, an amendment was sought for vide Ext.P3 seeking to incorporate the prayer for mandatory injunction, directing the fourth defendant to pay the plaintiff’s share in the amounts covered by the fixed deposit. The same was allowed by the learned Munsiff, which was subjected to further challenge before this court, culminating in Ext.P6 judgment. Ext.P6 found that the relief for mandatory injunction will not stand and that the plaintiff ought to have sought for declaration of the plaintiff’s entitlement of the share in the ``` 12 O.P(C).No. 530 of 2024 ``` fixed deposit and also for recovery of the same. It is accordingly that Ext.P6 judgment interfered with Ext.P5 order allowing the amendment, but reserving the plaintiff’s right to incorporate a relief for declaration and recovery of the due share of the amount. This court can only find that Ext.P7 is filed in accord with the reservation made in Ext.P6 judgment, seeking a declaration that the plaintiff is entitled to 1/5 share in the amounts left by the plaintiff’s father, coupled with a prayer for recovery of the said amount, by directing the fourth defendant to pay the sum specified in the amendment application. This court is not in a position to endorse the submission made by the learned counsel for the petitioner that such an amendment would alter the frame and nature of the suit and the same may cause prejudice to the petitioners. ``` O.P(C).No. 530 of 2024 13 ``` 9.Coming to the Order VI, Rule 17, it is settled that an amendment can be allowed at any stage of the proceedings on such terms as may be just, with a further mandate that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. It is the proviso which stipulates that an amendment which is sought for after commencement of the trial shall not be allowed, 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. In the instant case, this court notice that the factum of the amounts being received by the fourth defendant in his capacity as a nominee was disclosed to the plaintiff for the first time only when a reply notice was issued to the plaintiff on 10.05.2018. It is true that there is some delay on the part of plaintiff in seeking amendment of the relief promptly. However, this court is not ``` O.P(C).No. 530 of 2024 14 ``` inclined to non-suit the plaintiff for such delay, in as much as the amendment sought for, in the estimation of this court, is required for determining the real controversy by and between the parties. Moreover, such an amendment is all the more indicated, if the plaintiff is ultimately found to be entitled for the relief. The question of limitation cannot loom large, more so when the suit is one for partition originally, and when the same is sought to be amended, where also, the suit retains all the characteristic impressions of a partition suit. ``` ``` This Original Petition fails and the same will stand dismissed. ``` ``` Sd/- ``` ## **`C.JAYACHANDRAN, JUDGE`** ``` SSG ``` O.P(C).No. 530 of 2024 15 ## **`APPENDIX OF OP(C) 530/2024`** - **`PETITIONERS’ EXHIBITS Exhibit P1`** ``` TRUE COPY OF THE PLAINT DATED 19-12-2018 IN O.S NO.451 OF 2018 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA ``` - **`Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 23-5-2019 FILED BY DEFENDANTS NO.3 AND 4 IN O.S NO.451 OF 2018 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA`** - **`Exhibit P3 TRUE COPY OF THE AFFIDAVIT DATED 25-1-2023, FILED IN SUPPORT OF I.A NO.6 OF 2023 IN O.S NO.451 OF 2018 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA`** - **`Exhibit P4 TRUE COPY OF THE COUNTER STATEMENT DATED 27-1-2023 IN I.A NO.6 OF 2023, IN O.S NO.451 OF 2018 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA, FILED BY THE SECOND PETITIONER HEREIN`** - **`Exhibit P5 TRUE COPY OF THE ORDER DATED 7-2-2023 IN I.A NO.6 OF 2023, IN O.S NO.451 OF 2018 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA`** - **`Exhibit P6 TRUE COPY OF THE ORDER DATED 10-7-2023 IN O.P (CIVIL) NO. 402 OF 2023 OF HIGH COURT OF KERALA`** - **`Exhibit P7 TRUE COPY OF THE I.A NO.8 OF 2023 IN O.S NO.451 OF 2018 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA`** - **`Exhibit P8 TRUE COPY OF THE COUNTER STATEMENT DATED 11-9-2023 IN I.A NO.8 OF 2023 IN O.S NO.451 OF 2018 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA`** - **`Exhibit P9 TRUE COPY OF THE ORDER DATED 24-1-2024 IN I.A NO.8 OF 2023 IN O.S NO.451 OF 2018 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA`**