High Court of KeralaSingle Judge2008-02-20Writ petition disposed of; amendment allowed; l...

P. V. Gopinathan v. Lakshmi and others

Case / Petition Number:WP(C).No. 30444 of 2007(Y)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M. N. Krishnan
Judgment Date: 2008-02-20
Court Decision / Holding: The court set aside the Munsiff’s order denying amendment and allowed the amendment to fix the boundary, noting that the amendment would not prejudice the other party and would aid in a proper adjudication. The petitioner is allowed to amend the plaint accordingly, and the respondents may file an additional written statement in response to the amended pleadings. The writ petition is disposed of accordingly.
Final Disposition: Writ petition disposed of; amendment allowed; lower court’s order set aside; respondents may file an additional written statement.

Parties to the Case

Appellants / Petitioners

P. V. Gopinathan

Respondents

Lakshmi (wife of late Damodharan)
Manoharan
Mohanan

Legal Representation & Advocates

Counsels for Petitioners

• Sri G. Sreekumar (Chelur)

Counsels for Respondents

• Sri A. K. Alex
• Sri K. P. Suresh Kumar

Case Synopsis & Summary

This is a Kerala High Court writ petition (WP(C) No. 30444 of 2007) challenging the Munsiff, Vaikom’s order in IA 1786/07 in OS 377/06. The petitioner, P. V. Gopinathan, sought amendment of the plaint to include a prayer for fixing a boundary around the plaint schedule property after boundary stones were allegedly removed by the defendants just before a Commissioner’s inspection. The defendants objected, contending lack of bona fides, that the amendment would alter the suit’s character, and that it was filed on the eve of trial, hence not entertainable. The Munsiff rejected the amendment, prompting the writ petition. The Kerala High Court examined several decisions (Karthiyani v. Ramanathan; Mooppan Complex Merchants Association v. Raveendran; Bhaskaran Nair v. Chandramathyyamma; Baldev Singh v. Manohar Singh) and emphasized that amendments should not be rejected on hyper-technical grounds and that liberal amendment is permissible to achieve effective adjudication and avoid multiplicity of proceedings, especially where relief on boundary can determine the suit’s fate. The court held that fixing the boundary would not prejudice the other side and is essential for proper determination of rights; thus the amendment should be allowed. Consequently, the writ petition is disposed of with the amendment allowed and liberty given to the defendants to file an additional written statement.

Provisions of Law Cited

Constitution of India, Article 227Code of Civil Procedure, Order VI Rule 17Code of Civil Procedure (Amendment) Act, 2002; proviso to Order VI Rule 17

Legal Doctrines & Maxims

Avoid multiplicity of suits.
Court should be liberal in granting amendments unless serious injustice or irreparable loss is caused.
Due diligence principle in amendment practice (amendment allowed even if filed late if due diligence shown)
Avoid hyper-technical refusals; promote substantive justice.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the boundary dispute is a practical and integral aspect of the suit since boundary stones were removed just before official inspection, and a precise boundary demarcation is essential for an authoritative adjudication and for determining the appropriate injunction relief. He argues that the proposed amendment does not alter the nature of the suit but merely clarifies the boundary, which is necessary to avert future litigations and to ensure a single, coherent resolution of the property dispute. The amendment is sought at a stage where it can still be adjudicated without prejudice to the defendants, and, under the statutory framework, the proviso to Order VI Rule 17 allows amendments at appropriate stages where due diligence was exercised and the matter could not have been raised earlier.

Contentions of Respondents

The respondents maintain that the amendment would introduce a new facet into an injunction suit and change its fundamental character, causing prejudice and delay. They submit that the prayer for boundary fixation is not bona fide and is being pressed on the eve of trial. They rely on decisions such as Karthiyani v. Ramanathan and Mooppan Complex Merchants Association v. Raveendran to urge that Article 227 should not be invoked against the rejection of a plaint or in late-stage amendment applications, and emphasize that amendments should be approached cautiously, with a preference for preserving the original issues and avoiding multiplicity. They suggest that boundary disputes should be addressed by reinstalling or clarifying boundaries rather than through amendment that alters the relief sought.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Karthiyani v. Ramanathan	2005 (2) KLT 115	Distinguished	Cited to illustrate a constitutional remedy against rejection of a plaint; the present judgment adopts a liberal amendment approach under CPC amendments, thus distinguishing this earlier stance.
Mooppan Complex Merchants Association v. Raveendran	2004 (3) KLT 682	Mentioned Only	Cited as a background authority showing refusal to interfere under Article 227 regarding amendment rejection; not directly controlling the present liberal amendment outcome.
Bhaskaran Nair v. Chandramathyyamma	2006 (1) KLT 533	Positive	Used to support a liberal approach to amendment, stating courts should be extremely liberal in granting amendments unless serious injustice occurs.
Baldev Singh v. Manohar Singh	2006 (3) KLT 953	Positive	Affirmed liberal amendment principles; cited to reinforce the permissive approach to amendments in the interest of justice.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929** ## **WP(C).No. 30444 of 2007(Y)** **--------------------------------------** **OS.377/2006 of MUNSIFF COURT, VAIKOM** **....................** **PETITIONER:** **------------------** ## **P.V.GOPINATHAN, AGED 66, S/O VELAYUDHAN, PUTHENPARAMBIL CHIRAYIL, MARIYAPPALLY P.O., NATTAKAM VILLAGE, KOTTAYAM.** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** **RESPONDENTS:** **----------------------** **1. LAKSHMY, W/O LATE DAMODHARAN, THOTTATHIL, KULASEKHARAMANGALAM KARA AND VILLAGE.** **2. MANOHARAN, S/O DAMODHARAN, THOTTATHIL, KULASEKHARAMANGALAM KARA AND VILLAGE, VAIKOM TALUK.** **3. MOHANAN, S/O DAMODHARAN, THOTTATHIL, KULASEKHARAMANGALAM KARA AND VILLAGE, VAIKOM TALUK.** **BY ADV. SRI.A.K.ALEX SRI.K.P.SURESH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.30444/2007** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXT.P1:- COPY OF THE PLAINT IN OS. NO.377/2006 ON THE FILE OF THE MUNSIFF COURT, VAIKOM DT. 25.10.2006.** **EXT.P2:- COPY OF THE WRITTEN STATEMENT IN EXT.P1 SUIT DT. 1.12.2006.** **EXT.P3:- COPY OF THE APPLICATION IA. 1786/07 IN OS./ NO.377/2006 DT. 25.9.2007.** **EXT.P4:- COPY OF THE PASSED IN IA. N O.1786/07 IN OS. NO.377/2006 DT. 29.9.2007 ON THE FILE OF THE MUNSIFF COURT, VAIKOM.** _**/**_ **TRUE COPY/** ## **P.A. TO JUDGE** **tss** ## **M.N.KRISHNAN, J.** ## **-------------------------W.P.(C). NO. 30444 OF 2007 --------------------Dated this the 20[th ] day of February, 2008** ## **JUDGMENT** This writ petition is preferred against the order of the Munsiff, Vaikom, in IA 1786/07 in OS 377/06. It is an application for amendment of the plaint. It is averred in the application for amendment that just before the inspection of the property by the Commissioner, the defendants tried to trespass upon the plaint scheduled property and forcibly removed the boundary stones. Therefore the plaintiff wants to incorporate a prayer to fix the boundary on all the sides of the plaint scheduled property demarcating with the defendants property. This was strongly objected to by the defendants in the suit contending that it lacks total bona fide which goes against the averment in the plaint. It changes the character of the suit and therefore the amendment cannot be allowed. The court below held that the matter which was included in the list was adjourned and just a week prior to the commencement of the trial, an application has been filed and therefore it cannot be entertained. The court also opined “more over if there was well defined boundary for the property and it was destroyed by the defendants, then the remedy for the petitioner is to reinstall the boundary and not to ask for a relief of fixation of boundary”. Whereas this boundary will decide the fate of the litigation and also the relief for injunction. WPC NO 30444/07 2 2. Learned counsel appearing for the respondent had brought to my notice the two decisions referred to in **Karthiyani v. Ramanathan** [2005 (2) KLT 115] and in **Mooppan Complex Merchants Association v. Raveendran** [2004 (3) KLT 682]. In **Karthiyani v. Ramanathan** [2005 (2) KLT 115] this court on the facts and circumstances of that case held that “it is not desirable to invoke jurisdiction under Article 227 of he Constitution of India against the rejection of a plaint especially when the amended CPC 115 takes away the right of the parties. Reference to para 7 of the said judgment would reveal the reasons for not entertaining the application for amendment. The court held that it changes the basic character of the suit. In **Mooppan Complex Merchants Association v. Raveendran** [2004 (3) KLT 682] also this court refused to interfere under Article 227 of the Constitution of India when an application for amendment was rejected. The court held that such an application for amendment at the fag end of the trial cannot be entertained. Later in **Bhaskaran Nair v. Chandramathyyamma** [2006 (1) KLT 533], the Judge while dealing with the matter explained the decisions referred to by the learned counsel for the respondent and held that “the court should be extremely liberal in granting a prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side. The object of Order VI Rule 17 CPC is to avoid multiplicity of suits and the court has to keep this WPC NO 30444/07 3 principle in mind while considering the application for amendment of the pleadings. Amendment cannot be claimed as a matter of right under all circumstances. At the same time courts while deciding such prayers should not adopt a hyper-technical approach. The court also opined applications moved at a appropriate stage and not unduly delayed should not normally be rejected. The Apex court in the decision reported in **Baldev Singh v. Manohar Singh** [2006 (3) KLT 953] held that the courts should be extremely liberal in granting the prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side. The court also referred to the amendment proceedings of the CPC and held as follows. By the Code of Civil Procedure (Amendment) Act 2002 a proviso has been added to Order 6 rule 17 which restricts the courts from permitting an amendment to be allowed in the pleadings either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. Now bearing these principles in mind the court has to consider whether application of amendment has to be allowed or not. 3. The suit is filed for an injunction. Along with the suit an application for issuance of a commission is filed. It is averred in the WPC NO 30444/07 4 amendment application that just prior to the inspection by the Commissioner the boundary stones had been removed and therefore the plaintiff prays for a relief for fixation of boundary. It is true that the suit as originally filed is one for an injunction with respect to the plaint scheduled property. When a doubt is caused in the mind of court with respect to the correctness of the boundary of the property demarcating the plaintiffs property from the defendants property in order to have the proper adjudication of the matter, it is always desirable to have the boundaries fixed so that the parties need not file litigations after litigations to get a proper determination of their right with respect to the properties. Here what is prayed for is only an amendment whereby the plaintiff request the court to demarcate his property from the defendants’ property by fixing a proper boundary in accordance with his document. By any stretch of imagination it will not cause any prejudice to the other side. If it is done, certainly it will avoid multiplicity of proceedings. Just because it was filed on the eve of the trial, one shall not technically reject the petition on the ground of application of proviso to Order VI Rule 17. 4. Therefore, in order to have an effective and proper adjudication of the dispute between the parties and in the interest of justice I feel that it is necessary to have the boundary fixed. Therefore I find the court below fell into error in rejecting the application for amendment. Therefore I set aside the order of the court below in the light of the WPC NO 30444/07 5 enunciated principles laid down by various decisions referred to above and allow the application for amendment. Needless to say that since the application for amendment is allowed, the defendants are at liberty to file additional written statement refuting the allegations against them. The writ petition is disposed of accordingly. **M.N.KRISHNAN, JUDGE** vps WPC NO 30444/07 6 WPC NO 30444/07 7