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High Court of KeralaSingle JudgeOriginal petition allowed; Ext.P6 set aside; am...

Paramasivan, Mariyarathinam and Satheesh Kumar v. POABS Enterprises Pvt. Ltd and Thomas Jacob

Case / Petition Number:OP(C) NO. 1623 OF 2020
Neutral Citation:/null

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C. S. Dias
Judgment Date
2022-11-22
Court Decision / Holding
Original petition allowed. Ext.P6 order relating to I.A. No.5/2020 in O.S. No.180/2013 set aside. Ext.P4 application allowed. Petitioners to amend written statement within two weeks. Respondents may file a rejoinder to the amended statement within one month. The suits O.S. No.180/2013 and O.S. No.221/2011 to be disposed of expeditiously, on or before 31.03.2023.
Final Disposition
Original petition allowed; Ext.P6 set aside; amendments permitted; timetable for amendment and re-joinder; expedited disposal of the connected suits.

Parties to the Case

Appellants / Petitioners

  • Paramasivan
  • Mariyarathinam
  • Satheesh Kumar

Respondents

  • POABS Enterprises Pvt. Ltd
  • Thomas Jacob

Legal Representation & Advocates

Counsels for Petitioners

  • • S. Nidheesh

Counsels for Respondents

  • • Sri. N. James Koshy

Case Synopsis & Summary

This Original Petition (OP(C)) arises from Ext.P6, an order in I.A.5/2020 in O.S.180/2013 before the Munsiff Court, Peermade. The respondents-plaintiffs had filed suits for possession of 2.667 cents of land after purchasing the property at a 2009 auction conducted by the Provident Fund Authority. The petitioners (Tamilians) were not conversant with Malayalam and faced language barriers, leading them to seek leave to amend the written statement (Ext.P4) and to amend the plaint in the related suit (Ext.P3) in consolidated proceedings. The trial court dismissed both amendments, holding they were barred by the proviso to Rule 17 of Order 6 CPC, since amendments would alter pleadings after trial commenced. The petitioners challenged Ext.P6 in this Court, arguing illiteracy and lack of awareness of pleadings; they rely on Supreme Court authority that amendments to pleadings follow a liberal yardstick, unlike amendments to plaint. The High Court, applying the principles in Sushil Kumar Jain v. Manoj Kumar (2009) 14 SCC 38, held that, in these circumstances, a liberal approach should apply and set aside Ext.P6 with directions to allow amendements in writing statement and to complete the process within a short timeframe. The decision underscores Article 227 supervisory jurisdiction to ensure expeditious disposal of the suits.

Provisions of Law Cited

Proviso to Rule 17 of Order 6 of the Code of Civil ProcedureArticle 227 of the Constitution of India

Legal Doctrines & Maxims

  • Liberal approach to amendments of pleadings
  • Different yardstick for amendment of written statement vs plaint
  • Supervisory jurisdiction under Article 227 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the amendments to the written statement were necessitated by discrepancies noticed by their counsel; illiteracy and lack of familiarity with pleadings delayed proper drafting, and the amendments would not introduce a new case but correct and clarify the existing pleadings. They urged a liberal approach to amendment, citing Sushil Kumar Jain v. Manoj Kumar to justify relaxing procedural rigidity once trial has commenced, since the amendments are to align pleadings with true facts and avoid injustice.

Contentions of Respondents

The respondents argued that Ext.P4 sought to introduce a new case incompatible with the pleadings in O.S.221/2011 and the existing written statement, which would alter the nature of the lawsuit post-trial. They maintained that the court should adhere to Rule 17 proviso of Order 6 CPC to prevent material changes at a late stage and oppose granting leave to amend.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Sushil Kumar Jain v. Manoj Kumar2009 (14) SCC 38PositiveCited as authority for applying a liberal yardstick to amendments of pleadings in the written statement, distinguishing it from amendments to plaint, and supporting the Court’s liberal interference under Article 227.

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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 C.S.DIAS`** ## **`TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944`** ## **`OP(C) NO. 1623 OF 2020`** ## **`I.A. NO.5/2020 IN OS 180/2013 OF MUNSIFF COURT, PEERUMEDU`** ## **`PETITIONERS/DEFENDANTS 1 TO 3:`** ``` 1PARAMASIVAN AGED 62 YEARS S/O.SAMUEL, GRAMBY ESTATE, MANJUMALA VILLAGE, VANDIPERIYAR, PEERUMADE, IDUKKI. ``` ``` 2MARIYARATHINAM, W/O.PARAMASIVAN, GRAMBY ESTATE, MANJUMALA VILLAGE, VANDIPERIYAR, PEERUMADE, IDUKKI. 3SATHEESH KUMAR, S/O.PARAMASIVAN, GRAMBY ESTATE, MANJUMALA VILLAGE, VANDIPERIYAR, PEERUMADE, IDUKKI. ``` ``` BY ADV S.NIDHEESH ``` ## **`RESPONDENTS/PLAINTIFFS:`** ``` 1POABS ENTERPRISES PVT. LTD REGISTERED OFFICE K.P.4/142, KUTTOOR, OTHARA ROAD, KUTTOOR P.O., THIRUVALLA, REP. BY THE DIRECTOR, THOMAS JACOB, S/O. P.A.JACOB, PANACHAYIL HOUSE, OTHARA, KUTTOOR P.O., THIRUVALLA-689106. ``` ``` 2THOMAS JACOB, S/O. P.A.JACOB, PANACHAYIL HOUSE, OTHARA, KUTTOOR P.O., THIRUVALLA-689106. ``` ``` BY ADV SRI.N.JAMES KOSHY ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`OP(C) NO. 1623 OF 2020 2`** **Dated this the 22[nd] day of November, 2022** ## **JUDGMENT** Aggrieved by Ext.P6 order passed in I.A. No.5/2020 in O.S. No.180/2013 of the Court of the Munsiff, Peermade, the defendants in the suit have filed the original petition. The respondents are the plaintiffs in the suit. 2. The relevant facts leading to Ext.P6 order, in a narrow compass, are: the respondents have filed the suit against the petitioners for recovery of possession of 2.667 cents of land. The respondents have purchased the property in an auction conducted by the Provident Fund Authority in the year 2009. Prior to the institution of the above suit, the first petitioner has filed O.S. No.221/2011, for a decree of injunction. The petitioners have filed Ext.P3 written statement in the latter suit. The ``` OP(C) NO. 1623 OF 2020 3 ``` petitioners are Tamilians and are not conversant with Malayalam. They were ignorant regarding the implications of the pleadings. The two suits were consolidated and jointly tried. At the time of trial, the counsel for the petitioners relinquished his vakalath and a new counsel was engaged. The present counsel advised the petitioners to amend Ext.P3 written statement. Hence, the petitioners filed I.A. No.5/2020 (Ext.P4), seeking leave to amend the written statement. The respondents filed their proof affidavit on the same day Ext.P4 application was filed. The petitioners also filed I.A. No.3/2020 in the suit filed by them, seeking leave to amend the pleadings in the plaint. The court below, by the impugned Ext.P6 common order, dismissed both the applications seeking leave to amend the written statement as well as the plaint. Ext.P6 order, so far it relates to dismissal of the applications to amend the written statement is ex-facie illegal, arbitrary and unsustainable in law. Hence, the original petition. ## **`OP(C) NO. 1623 OF 2020 4`** 3. Heard; Sri.Nidheesh S., the learned counsel appearing for the petitioners and Sri. N. James Koshy, the learned counsel appearing for the respondents. 4. The point is whether Ext.P6 order so far as it relates to the dismissal of I.A. No.5/2020 in O.S. No.180/2013, is erroneous or not ? 5. The petitioners filed I.A. No.5/2020, seeking leave to amend the written statement. It is their case that certain discrepancies were noted in the written statement by their present counsel, who advised them to amend the written statement. The application was opposed by the respondents, principally on the ground that the petitioners are attempting to incorporate a new case, which is inconsistent with the pleadings in O.S.No.221/2011 and the pleadings in the written statement. 6. The court below dismissed the application holding that the application is hit by the proviso to Rule 17 of Order 6 of the Code of Civil Procedure (in short ‘Code’) ## **`OP(C) NO. 1623 OF 2020 5`** as it is filed after the commencement of trial and the amendment will materially change the written statement 7. It is trite, an application seeking leave to amend the pleadings have to be liberally considered. 8. The Hon’ble Supreme Court in **Sushil Kumar Jain v. Manoj Kumar** [(2009) 14 SCC 38] has categorically held that the amendment of a written statement is governed by a different yardstick than an application seeking the amendment of a plaint. 9. The petitioners’ case is that they are illiterate and are unaware of the pleadings in the written statement. It is only when their present counsel advised them, they felt the necessity to amend the written statement. 10. Taking into account the averments in the affidavit filed in support of Ext.P4 application, I am satisfied that the petitioners were not fully aware of the pleadings sought to be incorporated by way of amendment prior to the commencement of trial. 11. Following the principles in **Sushil Kumar Jain’s** ## **`OP(C) NO. 1623 OF 2020 6`** **case** (supra), I am of firm view that a liberal approach is to be adopted in the case at hand. Thus, I am inclined to interfere with Ext.P6 order, so far it relates to an order in I.A. No.5/2020 in O.S. No.180/2013, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India. In the result, the original petition is allowed as follows:- , (i) Ext.P6 order relating to the order passed in I.A. No.5/2020 in O.S. No.180/2013 is set aside. (ii) Ext.P4 application is allowed. (iii) The petitioners shall carryout the amendment in the written statement, in accordance with law, within two weeks from the date of receipt of a copy of this judgment. (iv) The respondents may file their re-joinder, if any, to the amended written statement, within one month from the date the amendment is carried out. (v) As the suits are of the year 2013, the court of the Munsiff, Peermade is directed to consider and dispose of ``` OP(C) NO. 1623 OF 2020 7 ``` O.S. No.180/2013 and O.S. No.221/2011, in accordance with law, as expeditiously as possible, at any rate, on or before 31.03.2023. **SD/-** **C.S.DIAS, JUDGE** rmm22/11/2022 ## **`OP(C) NO. 1623 OF 2020 8`** ## **`APPENDIX OF OP(C) 1623/2020`** ## `PETITIONER EXHIBITS` ``` EXHIBIT P1A TRUE COPY OF THE PLAINT IN O.S.180/13 ON THE FILE OF MUNSIFF COURT, PEERMADE. ``` - `EXHIBIT P2 TRUE COPY OF THE PLAINT IN O.S.221/11 ON THE FILE OF MUNSIFF COURT, PEERMADE.` - `EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.180/13 ON THE FILE OF MUNSIFF COURT, PEERMADE.` - `EXHIBIT P4 TRUE COPY OF THE I.A.5/2020 IN O.S.180/13 ON THE FILE OF MUNSIFF COURT, PEERMADE.` - `EXHIBIT P5 TRUE COPY OF THE PROOF AFFIDAVIT IN O.S.180/13 ON THE FILE OF MUNSIFF COURT,PEERMADE.` - `EXHIBIT P6 TRUE COPY OF THE ORDER IN I.A.NO.5/2020 IN O.S.180/13 ON THE FILE OF MUNSIFF COURT,PEERMADE DATED 30.6.2020.` - `EXHIBIT P7 TRUE COPY OF THE ORDER DATED 18.9.2020 IN RESTORATION PETITION 14/2020 IN O.S.NO.180/2013.`