Puthiyiruthi Gopinathan v Thiruthummal Ramachandran and Others

``` OP(C) NO. 4103 OF 2012 ``` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 1[ST] DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944 OP(C) NO. 4103 OF 2012 ``` ## **`AGAINST THE ORDER/JUDGMENT INOS 233/2010 OF MUNSIFF MAGISTRATE`** ## **`COURT,PONNANI`** ## **`PETITIONER/S:`** ``` PUTHIYIRUTHI GOPINATHAN, S/OPANGU, PUTHIYIRUTHI HOUSE,PURANGU (P.O) PINPONNANI TALUK, MALAPPURAM DISTRICT. ``` ``` BY ADV SRI.JAMSHEED HAFIZ ``` ## **`RESPONDENT/S:`** - `1 THIRUTHUMMAL RAMACHANDRAN S/O.KRISHNAN, THIRUTHUMMAL HOUSE` - `2 SREEDEVI WO.THIRUTHUMMAL BALAN THIRUTHUMMAL HOUSE` - `3 RAJI SADHAN WO.PUTHIYIRUTHI GOPINATHAN PUTHIYIRUTHI HOUSE` - `4 THIRUTHUMMAL BALAN SO.KRISHNAN THIRUTHUMMAL HOUSE ALL THE RESPONDENTS ARE RESIDING AT PURANGU (P.O)PIN` - `679 584 PONNANI TALUK, MALAPPURAM DISTRICT.` ``` BY ADVS. ``` ``` SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SRI.T.SETHUMADHAVAN SMT.VANDANA MENON ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 4103 OF 2012 ``` 2 ## **JUDGMENT** The original petition is filed assailing Ext.P9 order passed in I.A.No.1186/2012 in O.S.No.233/2010 of the Court of the Munsiff, Ponnani. 2. The facts leading to Ext.P9 order, in a nutshell, are: (i) The petitioner is the 1[st] defendant and the 1[st] respondent is the plaintiff in O.S.No.233/2010 before the court below. The 2[nd] respondent is the 2[nd] plaintiff and the respondents 3 and 4 are the defendants 2 and 3 in the suit. - (ii) The respondents 1 and 2 have filed the suit for a decree of permanent prohibitory injunction. - (iii) The petitioner has resisted the suit through Ext.P2 written statement, inter-alia, contending that he has no objection in fixing the boundary between his property and the property of the respondent 1 and 2. ``` OP(C) NO. 4103 OF 2012 ``` 3 - (iv) The 1[st] respondent had filed I.A.No.1213/2010 (Ext.P3) to depute an Advocate Commissioner. Thereafter, he filed I.A.No.1214/2011 (Ext.P4) to identify the property through the Advocate Commissioner with the assistance of a Surveyor. Consequently, Ext.P4 commission report was filed in the suit. - (v) The petitioner filed an application to verify Ext.P4 report through a retired Taluk Surveyor, which was allowed. Then, Ext.P5 supplementary report was placed on record. - (vi) The petitioner found certain trees belonging to him situated on the boundary line, which he had not mentioned in Ext.P2 written statement. Therefore, the petitioner filed Ext.P7 application to receive an additional written statement on file. The same was objected to by the 1[st] respondent through Ext.P8. ``` OP(C) NO. 4103 OF 2012 ``` 4 (vii) The court below, by the impugned Ext.P9 order, dismissed Ext.P7. Ext.P9 is erroneous and unsustainable in law. Hence, the original petition. 3. Heard Sri. Jamsheed Hafiz, the learned counsel appearing for the petitioner and Sri. Jayesh Mohankumar, the learned counsel appearing for the respondents 1 and 4. 4. The question is whether there is any illegality in Ext.P9 order. 5. On an appreciation of the pleadings and materials on record, it is seen that the petitioner had filed his written statement as early as on 28.02.2011. There are three commission reports on record. It is after the filing of the 3[rd] commission report, that the petitioner felt the necessity to file an additional written statement. 6. The court below, after considering Ext.P7 application and Ext.P8 objection, dismissed Ext.P7 application by Ext.P9 order, by holding as follows: ``` OP(C) NO. 4103 OF 2012 ``` 5 “6. Now coming to the merits of the case, **the defendants in the written statement have pleaded that they have no objection in fixing the boundary between the properties by measuring the property with the assistance of surveyor. Based on the above pleadings Taluk Surveyor was deputed to assist the commissioner and a report has been filed by the commissioner.** Subsequent to that the report and the plan were once again remitted back to same commissioner to measure the property with the assistance of a retired surveyor. After the measuring the of the property a fresh report has been filed by the commissioner. **Now the defendants are coming out with a new plea that the trees standing on the boundary between of the plaint schedule properties and their property belongs to them. This claim cannot be entertained at this stage. Moreover, in the original written statement the petitioners have pleaded that some trees are planted by first plaintiff in the disputed boundary.** 7. **If the additional written statement is received it will indirectly permit the defendants to withdraw the admissions made by them.** The court has acted based on the earlier plea of the defendants and has directed to measure the properties as per survey. The commissioner has filed report by identifying the boundary. **At this stage if an additional written statement is received that will be causing prejudice to the other side. Moreover the reason assigned for filing additional written statement is also not convincing.** ``` OP(C) NO. 4103 OF 2012 ``` 6 ## 8. Hence the petition is dismissed”. 7. On a reading of Exts.P7 application, P8 counter affidavit and P9 order, it is clear that the petitioner, now, through the additional written statement, is attempting to withdraw certain admissions made by him in Ext.P2 written statement. 8. Although the rigour to accept an additional written statement filed under Order 8 Rule 9 of the Code of Civil Procedure, 1908 (in short, “Code”) is comparatively lesser than that of amendment of pleadings filed under Order 6 Rule 17 of the Code, the Honourable Supreme Court in **Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd** [2022 SCC Online SC 1128] and a plethora of judgments has emphatically held that, while permitting subsequent pleadings, parties shall not be permitted to withdraw the admissions on record, as it would cause prejudice to the opposite side. 9. Going by the assertions in Ext.P7 application, I am ``` OP(C) NO. 4103 OF 2012 ``` 7 of the firm view that the petitioner’s attempt through the additional written statement is to withdraw the admissions made by him in Ext.P2 written statement, which cannot be permitted. 10. In the above legal and factual matrix, I hold that there is no error in Ext.P9 order, warranting interference by this Court under Article 227 of the Constitution of India. Resultantly, the original petition is dismissed. The Registry is directed to communicate this judgment to the court below. The court below shall make every endeavour to dispose of the suit, in accordance with law, as expeditiously as possible. **==> picture [105 x 14] intentionally omitted <==** **C.S.DIAS, JUDGE** rkc/01.12.22 ``` OP(C) NO. 4103 OF 2012 ``` 8 ## **`APPENDIX`** ``` PETITIONER’S EXHIBITS ``` ``` EXT.P1: A TRUE COPY OF THE PLAINT IN OS 233/10 BEFORE THE MUNSIFF MAGISTRATE COURT, PONNANI DT.1.12.10 ``` ``` EXT.P2: A TRUE COPY OF THE WRITTEN STATEMENT IN OS 233/10 BEFORE THE MUNSIFF MAGISTRATE COURT PONNANI DT.28.2.11 ``` ``` EXT.P3: A TRUE COPY OF THE COMMISSIONER’S 1ST REPORT DT.3.3.11 ``` ``` EXT.P4: A TRUE COPY OF THE COMMISSIONER’S 2ND REPORT DT.7.12.11 ``` ``` EXT.P5: A TRUE COPY OF THE COMMISSIONER’S 3RD REPORT DT.16.10.12 ``` ``` EXT.P6: A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT IN OS 233/10 BEFORE THE MUNSIFF MAGISTRATE COURT PONNANI DT.29.10.12 ``` ``` EXT.P7: A TRUE COPY OF THE APPLICATION TO RECEIVE THE ADDITIONAL WRITTEN STATEMENT AS IA 1186/12 IN OS 233/10 BEFORE THE MUNSIFF MAGISTRATE COURT, PONNANI DT.29.10.12 ``` ``` EXT.P8: A TRUE COPY OF THE COUNTER TO THE IA 1186/12 IN OS 233/10 BEFORE THE MUNSIFF MAGISTRATE COURT PONNANI DT.8.11.12 ``` ``` EXT.P9: A TRUE COPY OF THE ORDER IN IA 1186/12 IN OS 233/10 BEFORE THE MUNSIFF MAGISTRATE COURT PONNANI DT.20.11.12 ```