PUTHILLAM RASHEED and others v KUNNIYATHAM KAKKADA MARIYOMMABI and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH DAY OF JANUARY 2013/25TH POUSHA 1934 OP.No. 30566 of 2002 (L) -----------------------IA NO.2903/2002 IN OS 266/1999 OF III ADDITIONAL SUB COURT, KOZHIKODE PETITIONER(S): -------------------------- 1. PUTHILLAM RASHEED, AGED 37, S/O. NAFEESA,AMENI,U.T. OF LAKSHADWEEP. 2. PUTHILLAM NAFEESA, D/O. AYISSA, AMENI,U.T. OF LAKSHADWEEP. 3. PUTHILLAM MUTHUKOYA, S/O. NAFEESA IN -DO- -DO-. 4. PUTHILLAM SUHARA, D/O. NAFEESA IN -DO- -DO-. 5. PUTHILLAM CHERIYABI, D/O. NAFEESA IN -DO- -DO-. 6. PUTHILLAM ATTABI, D/O. NAFEESA IN -DO- -DO-. 7. PUTHILLAM AYISSABI, D/O. NAFEESA IN -DO- -DO-. 8. PUTHILLAM SAFARULLAGHAN, AGED 12(MINOR) IN -DO- -DO-,REPRESENTED BY MOTHER AND GUARDIAN 4RH PETITIONER SUHARA. 9. PUTHILLAM MAMBINA, AGED 10 (MINOR) IN -DO- -DO-,REPRESENTED BY MOTHER AND GUARDIAN 4TH PETIIONER SUHARA. 10. PUTHILLAM MUBINA, AGED 8 (MINOR) IN -DO- -DO-,REPRESENTED BY MOTHER AND GUARDIAN 4TH PETITIONER SUHARA. (PETITIONERS 2 TO 10 REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER PETITIONER NO.1,PUTHILLAM RASHEED) BY ADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.K.JAYAKUMAR (SENIOR ADVOCATE) SRI.P.B.KRISHNAN SRI.HARISH R. MENON OP NO.30566/2002 2 RESPONDENT(S): ---------------------------- 1. KKUNNIYATHAM KAKKADA MARIYOMMABI, W/O. MUHAMMED MUSALIYAR,AMENI,U.T. OF LAKSHADWEEP. 2. KUNNIYATHAM KAKKADA AHAMMED, S/O. PUTHILLAM MUHAMMED MUSALIYAR,AMENI U.T. OF LAKSHADWEEP. 3. KUNNIYATHAM KAKKADA NASAR, S/O. PUTHILLAM MUHAMMED MUSALIYAR,AMENI U.T. OF LAKSHADWEEP. 4. KUNNIYATHAM KAKKADA SALMABI, D/O. PUTHILLAM MUHAMMED MUSALIYAR,AMENI U.T.OF LAKSHADWEEP. 5. KUNNIYATHAM KAKKADA HAMIDATHBI, D/O. PUTHILLAM MUHAMMED MUSALIYAR,AMENI U.T. OF LAKSHADWEEP. 6. PUTHILLAM ABDULGHADHER, S/O. ATHI, AMENI,U.T. OF LAKSHADWEEP. - (*) 7. PUTHILLAM HAMSA, - S/O. -DO- IN -DO- -DO-.(DIED AND LRS RECORDED) 8. PUTHILLAM SAKEENA, D/O. -DO- IN -DO- -DO-. - (**) 9. PUTHILLAM FATHUMMABI, D/O. -DO- IN -DO- -DO-.(DIED AND LEGAL HEIRS RECORDED) 10. PUTHILLAM CHERIYAKOYA, S/O. AYISSA IN -DO- -DO-. 11. PUTHILLAM SARABI, D/O. -DO- IN -DO- -DO-. 12. PUTHILLAM KUNHI, S/O. -DO- IN -DO- -DO-. 13. PUTHILLAM SEEMA, D/O. -DO- IN -DO- -DO-. 14. PUTHILLAM HAMARUNEESA, D/O. -DO- INI -DO- -DO-. 15. PUTHILLAM THANGA KOYA, S/O. SARABI INI -DO- -DO-. OP NO.30566/2002 3 16. PUTHILLAM HIDAYATHULLAGHAN, S/O. -DO- IN -DO- -DO-. - (***) 17. PUTHILLAM JOUHARATH, D/O. -DO- IN -DO- -DO-.(DIED. LRS. IMPLEADED) 18. PUTHILLAM FAREEDHA, D/O. SEEMA INI -DO- -DO-. 19. PUTHILLAM SHAFEEQ, S/O. SEEMA IN -DO- -DO-. 20. PUTHILLAM SAJEEDHA, AGED 16 (MINOR), D/O. -DO- IN -DO- -DO-. (REPRESENTED BY MOTHER & GUARDIAN SEEMA,R-13 HEREIN). 21. PUTHILLAM ABIDHA, AGED 13 (MINOR), D/O. -DO- IN -DO- -DO-.(REPRESENTED BY MOTHER & GUARDIAN SEEMA,R-13 HEREIN). 22. PUTHILLAM ABHUSALA KOYA, AGED 14 (MINOR) S/O. -DO- IN -DO- -DO-.(REPRESENTED BY MOTHER & GUARDIAN HAMARUNEESA,R-14 HEREIN). 23. PUTHILLAM SYED MUHARI, S/O.SAKEENA IN -DO- -DO-. 24. PUTHILLAM SIRAJ, S/O. -DO- IN -DO- -DO-. 25. PUTHILLAM NALLAKOYA, S/O. FATHUMMABI IN -DO- -DO-. 26. PUTHILLAM AHAMMED, S/O. -DO- IN -DO- -DO-. 27. PUTHILLAM HAJARA, D/O. FATHUMMABI IN -DO- -DO-. 28. PUTHILLAM ASHARAF, S/O. -DO- IN -DO- -DO-. 29. PUTHILLAM ASMA, S/O. -DO- IN -DO- -DO-. 30. PUTHILLAM FATHUHULLA, S/O. -DO- IN -DO- -DO-. 31. PUTHILLAM ABU HASHIM, AGED 13 (MINOR), S/O. HAJARA (REPRESENTED BY MOTHER & GUARDIAN HAJARA,R-27 HEREIN). 32. PUTHILLAM SAMAD, AGED 13 (MINOR), S/O. -DO- IN -DO- -DO- (REPRESENTED BY MOTHER & GUARDIAN,HAJARA,R-27 HEREIN). OP NO.30566/2002 4 33. PUTHILLAM MUHAMMED JASIM,AGED 12(MINOR), S/O. ASMA IN -DO- (REPRESENTED BY MOTHER & GUARDIAN ASMA,R-29 HEREIN). 34. KOMBAM MUTHUKOYA, S/O. ABDUL GADHAR, AMENI,U.T. OF LAKSHADWEEP. 35. POLAKADAM JAFER, S/O. HAMSA, AMENI,U.T. OF LAKSHADWEEP. 36. POLAKADAM SYEDUL ABEED, S/O. HAMSA, AMENI,U.T.OF LAKSHADWEEP. 37. POLAKKADAM MARIYOMMABI, D/O. HAMSA, AMENI,U.T. OF LAKSHADWEEP. (***)ADDL.R38 IMPLEADED: ADDL.R38. FARIS AHAMMED, S/O.PUTHILLAM JOUHARATH, RESIDING AT AMINI ISLAND, U.T. OF LAKSHADWEEP (REPRESENTED BY GUARDIAN) IS IMPLEADED AS PER ORDER DATED 15.01.2013 IN IA NO.8435/2008) (***)ALIKAKKADA FAISAL, S/O.DOUHEED MANZIL MUTHUKOYA, AGED 29, AMINI ISLAND, U.T. OF LAKSHADWEEP IS APPOINTED AS THE GUARDIAN OF THE ADDITIONAL R38 AS PER ORDER DATED 15.01.2013 IN IA NO.8434/2008 (*)PETITIONERS, RESPONDENTS 10 TO 16 AND 18 TO 33 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED RESPONDENT NO.7 AS PER ORDER DATED 15.1.2013 IN IA NO.964/2010. (**)PETITIONERS, RESPONDENTS 7, 8 AND 10 TO 33 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED R9 AS PER ORDER DATED 15.1.2013 IN MEMO (CF 3197/07) R7,R23 TO R37 BY ADV. SRI.P.R VENKITESH THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPNO.30566/2002 ## APPENDIX ## PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 4.10.2002 IN IA NO.2903/2002 IN OS NO.266/1999 ON THE FILE OF THE SUB COURT, KOZHIKODE RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P. No.30566 of 2002 -------------------------------------Dated this the 15[th] day of January, 2013.** ## **JUDGMENT** Ext.P1, order dated 04.10.2002 on I.A.No.2903 of 2002 in O.S.No.266 of 1999 of the III Additional Sub Court, Kozhikode refusing amendment of the plaint to incorporate paragraph 9(a) is under challenge in this original petition. 2. According to the petitioners, the suit properties originally belonged to palalam tarwad. The common ancestor - Amina had two children by name, Sara and Parkey. While so, there was a maintenance arrangement as per order in C.S.No.203 of 1934 of Monegar's Court between the children of Sara and Parkey. Sara and children stayed in puthilathu tarwad while Parkey and children stayed in palalam tarwad. The suit properties are friday (tarwad) properties of palalam tarwad. Sara and Parkey had self acquired properties as well. After the death of Sara, as per order in C.S.No.40 of 1957 of the Tahsildar, Amini, the self acquired properties of Sara were converted as friday properties of the tarwad and came to be held by puthilathu trarwad. It is the further case of petitioners/plaintiffs that consistent with the order in C.S.No.203 of 1934 the parties have executed document No.78 of 1980 which according to the petitioners, is only an arrangement between the parties for their maintenance and did not convey absolute right over properties to the parties concerned. 2 OP No.30566/2002 However, asserting absolute right over the properties some of the respondents executed some documents. Hence the suit to set aside those documents, declare that the extecutants of those documents had no right of disposition as it was tarwad properties and for a decree for prohibitory injunction, alternatively, for recovery of possession. 3. The suit was originally filed in the Sub Court, Kavarathi as O.S.No.5 of 1995, later transferred to the District Court, Kavarathi and renumbered as O.S.No.42 of 1997. Then the suit was transferred to the III Additional Sub Court, Kozhikode and renumbered as O.S.No.266 of 1999. 4. After commencement of trial, petitioners filed I.A.No.2903 of 2002 for amendment of the plaint. Purport of the application was to amend relief (b) in the plaint by incorporating the words “the decision in C.S.No.203 of 1934 and document No.78 of 1980 are for maintenance of the parties”. A similar amendment was sought for in the body of the plaint as paragraph 9(a) to be newly inserted. 5. Learned Sub Judge dismissed the application mainly for the reason of non-compliance of the proviso to Order VI, Rule 17 of the Code of Civil Procedure (for short, “the Code”). 3 OP No.30566/2002 6. Learned Senior Advocate for petitioners contended that the proviso referred to above has no application since the suit is of the year, 1995. Reliance is placed on the decision in **State Bank of Hyderabad v. Town Municipal Council ((2007) 1 SCC 765)** . 7. I have heard learned counsel for the contesting respondents as well who supported the order under challenge. 8. I must notice that even in the plaint as originally filed, petitioners have a contention that the order in C.S.No.203 of 1934 of the Monegar's Court is a maintenance arrangement. Contention is that it is consistent with the said order that document No.78 of 1980 was executed between the parties which is only a maintenance arrangement and did not convey absolute right over the properties dealt with thereby enabling assignment of the said properties. 9. Having regard to the contentions raised by the parties I am inclined to think that the amendment sought for is necessary to decide the real controversy between the parties. In the light of what is stated in paragraphs 7 and 8 of the decision referred to supra, the proviso to Order VI, Rule 17 of the Code cannot be applied in this case since the proviso came into effect only on 01.01.2002 while the suit is of the year, 1995. Even otherwise this Court in **Eapen Antony v. Joseph and another (2009(1) ILR (Ker.) 712)** has held that even in spite of exercise of due diligence, a party may not find out the defect in the pleadings which may come to his notice in the course of trial. In this case I stated that foundation for the amendment is already raised in the plaint as 4 OP No.30566/2002 originally filed. It is clear that the portion sought to be amended was inadvertently omitted from the pleadings. Having regard to the above, I am inclined to think that the impugned order cannot be sustained and amendment ought to be allowed to decide the real controversy between the parties. Resultantly the original petition is allowed as under: i. Ext.P1, order dated 04.10.2002 on I.A.No.2903 of 2002 in O.S.No.266 of 1999 of the III Additional Sub Court, Kozhikode is set aside. I.A.No.2903 of 2002 is allowed as prayed. ii. Petitioner shall carry out amendment as prayed for in I.A.No.2903 of 2002 and allowed hereby, within one month from this day. iii. Needless to say that the respondents/defendants will be given opportunity to file additional written statement in answer to the amendment. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks** 5 OP No.30566/2002 **Thomas P. Joseph, J.** **O.P.No.30566 of 2002** ## **JUDGMENT** **15[th] January, 2013**