Podiamma d/o Mema and Others v. K. Podi yan s/o Kandan and C.K. Bhaskar an s/o Kandan

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA, 1944 ``` ## **`OP(C) NO. 1772 OF 2014`** ## **`OS 396/2004 OF MUNSIFF COURT ,PATHANAMTHITTA`** ## **`PETITIONERS:`** - `1 PODIYAMMA D/O. MEMA, CHIRAKKAROTTU HOUSE, VALLICODE MURI & VILLAGE, PATHANAMTHITTA.` - `2 BHASKARAN H/O. PODIYAMMA, CHIRAKKAROTTU HOUSE, VALLICODE MURI & VILLAGE, PATHANAMTHITTA.` - `3 VELUTHA PENNU D/O.MEMA,CHIRAKKAROTTU HOUSE, VALLICODE MURI & VILLAGE, PATHANAMTHITTA.` - `4 KOCHU CHERUKKAN D/O. MEMA,CHIRAKKAROTTU HOUSE, VALLICODE MURI & VILLAGE, PATHANAMTHITTA.` ``` BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX ``` ## **`RESPONDENTS:`** - `1 K.PODIYAN S/O. KANDAN, ARAVINDAKSHA BHAVANAM, KODUMON MURI & VILLAGE, PATHANAMTHITTA DISTRICT-689645.` ``` 2C.K. BHASKARAN S/O. KANDAN, UDAYA BHAVAN, PARANTHAL, PONGALADY MURI, PANDALAM THEKKEKKARA VILLAGE, PATHANAMTHITTA DISTRICT-689645. ``` ## **`OP(C) NO. 1772 OF 2014 2`** ``` BY ADVS. SRI.ARUN.B.VARGHESE SRI.JAYKAR.K.S. ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 1772 OF 2014 3 ``` **Dated this the 11[th] day of January, 2023** ## **JUDGMENT** Confronted with Ext.P6 order passed in I.A. No.1373/2013 in O.S. No.396/2004 by the Court of the Munsiff, Pathanamthitta, 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 nut shell, are: the respondents have filed the suit against the petitioners, seeking a decree for fixation of western boundary of plaint schedule item Nos.1 and 2 properties and for consequential reliefs. The suit is resisted by the petitioners through Ext.P2 written statement. The suit was dismissed by the court below on 19.03.2007. The respondents took up the matter in appeal by filing A.S. No.146/2007 before the Court of the Additional District ``` OP(C) NO. 1772 OF 2014 4 ``` Judge, Pathanamthitta. By Ext.P3 judgment, the Appellate Court remanded the matter to the Trial Court for fresh consideration. Thereafter, for the amplification of the written statement, the petitioners filed I.A. No.1373/2013 (Ext.P4), seeking leave to amend the written statement. The application was opposed by the respondents through Ext.P5 objection. The court below, by the impugned Ext.P6 order, dismissed Ext.P4 application. Ext.P6 is manifestly wrong and unsustainable in law. Hence, the original petition. 3. Heard; Sri. Jacob P.Alex, the learned counsel appearing for the petitioners and Sri. Arun B. Varghese, the learned counsel appearing for the respondents. 4. The question is, is there any illegality in Ext.P6 order. 5. The Trial Court had dismissed the suit on 19.03.2007. In the appeal filed by the respondents, the matter was remanded back to the Trial Court by Ext.P3 ## **`OP(C) NO. 1772 OF 2014 5`** ## judgment holding as follows:- “In the result, the appeal is allowed. The judgment and decree of the court below are set aside and the case is remanded back to the court below for fresh disposal in accordance with law after giving an opportunity to both parties to adduce evidence.” 6. Consequent to the remand, the petitioners filed Ext.P4 application, inter alia, contending that in order to bring more clarity in the written statement, it is necessary to amplify the written statement. Thus, they sought leave under Order 6 Rule 17 of the Code of Civil Procedure (in short ‘Code), to amend the written statement. 7. The respondents resisted Ext.P4 application by filing Ext.P5 objection, inter alia, contending that the application is hit by the proviso to Rule 17 of Order 6 of the Code. 8. The court below, by the impugned Ext.P6 order, taking into account the fact that the Appellate Court had only permitted the parties to adduce evidence and that ``` OP(C) NO. 1772 OF 2014 6 ``` the pleading sought to be incorporated by way of amendment was well within the knowledge of the petitioners, held that the application is hit by the proviso to Rule 17 of Order 6 of the Code. 9. On a careful reading of Ext.P4 application, it can be deciphered that the petitioners have not sought to incorporate any new case, but have only sought to amplify the pleadings in Ext.P2 written statement. 10. The Honourable Supreme Court in **State of Bihar and Others v. Modern Tent House and Another** [2017 KHC 6589] has held as follows:- “8. We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defense already taken; thirdly, it does not introduce any new defense compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defense already taken nor will result in withdrawing any kind of admission, if made in the written statement; fifthly, there is ## **`OP(C) NO. 1772 OF 2014 7`** no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defense or and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs; and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the Courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises.” ## 11. **In Pradeep Singhvi and Another v. Heero Dhankani and Others** [(2004) 13 SCC 432], the ## Honourable Supreme Court has held thus:- “3. We have heard the learned counsel for the parties. We do not find merit in the submission made on behalf of the respondents that the proposed amendment would have had the effect of drastically altering the nature of the defence or withdrawing an admission made earlier by the defendants. Under Order 6 Rule 17 CPC, the court has discretion to permit at any stage of the proceedings such amendment in the pleadings as would be necessary for the purpose of determining the real questions in controversy between the parties. 4. Of course, by the time the defendants moved an application for amending the written statement, the trial had commenced but the proposed amendment, if allowed, would not have irreparably prejudiced the plaintiffs. At the most, ## **`OP(C) NO. 1772 OF 2014 8`** the plaintiff would have been re-examined. We do not think that the trial court was justified in refusing the prayer for amendment in written statement which would have the effect of excluding the defendants from raising a plea material for their defence.” 12. Recently, in **Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd and another** [2022 SCC Online SC 1128], the Honourable Supreme Court has held that all amendments which are categorically necessary for the determination of the real question of controversy, shall be allowed, taking into account the word ‘shall’ used in Order 6 Rule 17 of the Code; provided it does not cause injustice or prejudice to the opposite side. It is further held that, it is only when the pleading sought to be incorporated are barred by limitation or hit by the provisions of Order 2 of Rule 2 of the Code, that the court should decline an amendment. It is also held that the applications for amendment should be liberally considered, but by giving the opposite side a ## **`OP(C) NO. 1772 OF 2014 9`** fair chance to meet the case set up by way of amendment. 13. Taking into consideration the law laid down by the Honourable Supreme Court in the afore-cited decisions and the fact that the petitioners have only sought to amplify the pleadings that is on record in Ext.P2 written statement, I find no prejudice being caused to the respondents by way of amendment. In fact, the amendment would ease the court below to decide the suit. Thus, I am of the definite view that Ext.P6 order warrants interference by this Court under Article 227 of the Constitution of India. In the result, the original petition is allowed as follows:- (i) Ext.P6 order is set aside. (ii) Ext.P4 application is allowed. (iii) The petitioners shall carry out the amendment within the prescribed time period. (iv) The court below shall permit the respondents to ``` OP(C) NO. 1772 OF 2014 10 ``` file their rejoinder to the amended written statement. (v) As the suit is of the year 2004, the court below shall consider and dispose of the suit, in accordance with law, as expeditiously as possible and at any rate on or before 13.04.2023. **Sd/-** **C.S.DIAS, JUDGE** rmm11/01/2023 ## **`OP(C) NO. 1772 OF 2014 11`** ## **`APPENDIX OF OP(C) 1772/2014`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE PLAINT IN O.S. NO. 396/2004 BEFORE THE MUNSIFFS COURT, PATHANAMTHITTA. ``` ``` EXHIBIT P2TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO. 396/2004 BEFORE THE MUNSIFFS COURT, PATHANAMTHITTA. ``` ``` EXHIBIT P3TRUE COPY OF THE JUDGMENT DATED 24-3-2010 IN A.S. NO. 146/2007 BEFORE THE ADDL.DISTRICT COURT, PATHANAMTHITTA. ``` ``` EXHIBIT P4TRUE COPY OF THE I.A. NO. 1373/2013. ``` ``` EXHIBIT P5TRUE COPY OF THE OBJECTION DATED 22-10- 2013 IN I.A. NO. 1373/2013. ``` ``` EXHIBIT P6TRUE COPY OF THE ORDER DATED 19-6-2014 IN I.A. NO. 1373/2013 IN O.S. NO. 396/2004 BEFORE THE MUNSIFFS COURT, PATHANAMTHITTA. ```