Ramachandran and others v. Gopalakurup Vijayan Pillai and Gopalakurup Chandran Pillai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938** **OP(C).No. 1582 of 2016 (O)** ## **---------------------------** **PETITIONERS/RESPONDENTS IN I.A 1391/2016 IN OS 266/2007: ---------------------------------------------------------** ## **1. RAMACHANDRAN,** - **AGED 40 YEARS, VARATTUCHIRA VADAKKATHIL VEETTIL, PAVUMBA VILLAGE & P.O,** - **KARUNAGAPALLY, KOLLAM DISTRICT 690 574.** **2. ROHINI,** - **W/O MANIYAN, AGED 36 YEARS, VARATTUCHIRA VADAKKATHIL VEETTIL, PAVUMBA VILLAGE & P.O, KARUNAGAPALLY, KOLLAM DISTRICT 695 574.** **3. ANANDAN,** - **S/O KOCHUCHERUKKAN, AGED 45 YEARS, VARATTUCHIRA, VADAKKATHIL VEETTIL, PAVUMBA VILLAGE & P.O KARUNAGAPALLY,** - **KOLLAM DISTRICT 690 574.** **4. KUNJUMON,** - **S/O KRISHNAN PANICKAN, AGED 35 YEARS, VARATTUCHIRA THEKKATHIL PAVUMBA VILLAGE & P.O, KARUNAGAPALLY, KOLLAM DISTRICT 690 574.** **5. ABDUL SALAM, S/O KOYAKUTTY, AGED 35 YEARS, ALAPPADU THEKAKTHIL, PAVUMBA VILLAGE & P.O., KARUNAGAPALLY,** **KOLLAM DISTRICT 690 574.** **BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN SMT.NEENU PAVITHRAN** **.....2** **-2-** **RESPONDENTS/PLAINTIFF IN I.A 1391/2016 IN O.S 266/2007: ---------------------------------------------------------** **1. GOPALAKURUP VIJAYAN PILLAI, AGED 47 YEARS, KUTTIVILAYAIL VEEDU, PAVUMBA VILLAGE & P.O VADAKKUM MURI, KARUNAGAPALLY, KOLLAM DISTRICT 690 574.** **2. GOPALAKURUP CHANDRAN PILLAI, AGED 45 YEARS, KUTTIVILAYIL VEETTIL, PAVUMBA VILLAGE & P.O VADAKKUM MURI, KARUNAGAPALLY, KOLLAM DISTRICT 690 574.** **R1 BY ADV. SRI..HARISH GOPINATH (CAVEATOR)** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 1582 of 2016 (O)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 - TRUE COPY OF THE ORDER DATED 17-06-2016 IN I.A 1391 OF 2016 IN O.S 266/2007 PASSED BY THE COURT OF MUNSIFF, KARUNAGAPALLY.** **EXHIBIT P2 - TRUE COPY OF I.A FILED AS 1391/2016 BY RESPONDENT FOR AMENDMENT OF PLAINT IN O.S 266/2007 DATED 03-06-2016** **EXHIBIT P3 - TRUE COPY OF OBJECTION FILED IN I.A 1391/2016 BY PETITIONERS HEREIN DATED 04-06-2016.** **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** //true copy// P.S. to Judge ## **K. HARILAL, J. -----------------------------------------------------O.P. (C) No. 1582 of 2016 -----------------------------------------------------Dated this the 18[th] day of August, 2016** ## **JUDGMENT** This Original Petition has been filed challenging the order of the Munsiff's Court, Karunagapally, in I.A. No.1391/2016 in O.S. No.266/07 filed under Order 6 Rule 17 of the Code of Civil Procedure, allowing the application for amendment to the plaint. 2. The suit is one for prohibitory injunction restraining the respondents from altering the boundaries and from cutting and removing trees. Later, the plaint was amended, incorporating a prayer for mandatory injunction to restore the property, to its original position. But, the respondents omitted to seek amendment to the court fee portion to make it in accordance with the amended prayer for mandatory **O.P. (C) No. 1582 of 2016** -: 2 :- injunction. Hence, in the above Interlocutory Application, the respondents sought for amendment to the court fee portion to make it in terms with the relief of mandatory injunction, incorporated by way of earlier amendment. 3. The petitioners strongly objected the said application contending that the application is hit by the proviso to Order 6 Rule 17 of the CPC. The application is highly belated and there is willful laches or negligence on the part of the respondents. According to them, had the petitioners been diligent, they could have raised the matter, before the commencement of trial. 4. After considering the rival contentions, the trial court allowed the application and the legality and propriety of the findings, whereby the application is allowed, are impugned in this Original Petition. 5. Heard Sri. N. Subramaniam, the learned counsel for the petitioners and Sri. Harish Gopinath, the learned counsel for the respondent. ## **O.P. (C) No. 1582 of 2016** -: 3 :- 6. The learned counsel for the petitioners advanced arguments highlighting the rigour of the embargo under Order 6 Rule 17 of the CPC. In support of the arguments, the learned counsel cited the decisions reported in N. Jayaram Reddy v. R.D.O. [(1979) 3 SCC 578]; M/s. K.T. Kubal & Company, Mumbai v. Mujibur Rehman Haji Israr Alam Siddiqui [2015 AIR CC 2135 (BOM)]; Nirmala Singh v. Mehendra Pratap Sharma [2015 AIR CC 2074 (MP)] and Santlal v. Ramkewal & Ors. [2015 (3) CCC 231 (All.)]. 7. The decisions referred above deals with the rigour of the embargo against the amendment after the commencement of trial. The principle that can be culled out from all these decisions is one and the same and it can be illustrated as follows: 8. After the amendment to Order 6 Rule 17 of the C.P.C. with effect from 1/7/2002, incorporating the proviso, where an application seeking amendment to the plaint or written statement is filed after the **O.P. (C) No. 1582 of 2016** -: 4 :- commencement of the trial, the first question which requires to be compulsorily considered and answered is, whether the petitioner could not have raised the matter before the commencement of trial, despite due diligency. If the answer is 'yes', and if such an amendment is essential for determination of the real question in controversy involved in the suit, the amendment can be allowed. It is true that amendment cannot be claimed as a matter of right under all circumstances, in view of the aforesaid proviso to Order 6 Rule 17 of the CPC. It follows that there is no absolute bar against the amendment, even after the commencement of trial; but it cannot be allowed liberally as before the commencement of trial. 9. In the instant case, the court below considered the aforesaid question and answered positively in favour of the respondents on a finding that there was no willful laches in seeking amendment earlier and they omitted to seek amendment by a bona fide mistake only. Is the court below justified in **O.P. (C) No. 1582 of 2016** -: 5 :- arriving at such a finding? 10. It stands admitted that now the trial is almost over and at that stage only the respondents have noticed the non-payment of the required court fee and the omission to make amendment in the court fee portion of the plaint, in accordance with the prayer for mandatory injunction, which was incorporated subsequently by way of amendment after the filing of the suit. The said amendment was sought for pursuant to the subsequent events after the filing of the suit and the court was satisfied of the requirement of such an amendment and allowed the same. Therefore, lack of diligency cannot be attributed, in seeking earlier amendment, for incorporating the prayer for mandatory injunction after the filing of the suit. It is true that they should have sought for amendment to the court fee portion also to make in accordance with the new relief of mandatory injunction. Had they been aware of the said omission, certainly, they would have sought for such an **O.P. (C) No. 1582 of 2016** -: 6 :- amendment also. So, it could be reasonably presumed that it might have so occurred by a bona fide mistake only. I do not find any reason to believe that the said omission was willfully or negligently made, in view of the earlier amendment incorporating the prayer for mandatory injunction. 11. The above view is supported by the decision of this Court in Mohanan Nair v. Premachandran Nair and Another [2015 (5) KHC 559] which reads as follows: “An omission is something which is not made consciously. If it is made consciously, strictly speaking, it cannot be said that it is a bona fide omission. Sometimes, an omission could not be found out in spite of due diligence in prosecuting the litigation. Simply because the plaintiff omitted to mention something in the plaint, not deliberately, it cannot always be said that he was not acting with due diligence. The question ## **O.P. (C) No. 1582 of 2016** -: 7 :- whether the plaintiff acted with due diligence and whether he could have raised the matter before the commencement of trial, all depend on the facts and circumstances of each case.” 12. The purpose of the proviso to Order 6 Rule 17 of the CPC is to avoid, alteration of the nature and character of the suit, resilience from admission made earlier, introduction of a new plea inconsistent with the earlier plea, entertainment of time barred claim and reliefs etc., to the prejudice of the opposite party, in a belated stage. In Rajesh Kumar v. Modi [2006 (3) KLT 192], the Apex Court held that the court should allow all amendments which are necessary for determining the real question in controversy between the parties, provided, it does not cause injustice or prejudice to the other side. While considering amendment application, the Court is not supposed to go into the correctness or falsity of case. 13. In the instant case, even though this **O.P. (C) No. 1582 of 2016** -: 8 :- amendment is sought for after the commencement of trial, no kind of prejudice or injustice will be caused to the petitioner by allowing the amendment. That apart, the present amendment is one that comes corollary to the amendment incorporating prayer for mandatory injunction allowed earlier and nothing new has been introduced by this amendment. On the other hand, if the amendment is not allowed, the petitioners will be deprived of their valuable right to get determined the real question in controversy arose after filing the suit. Thus, the court below is justified in allowing the application. There is no illegality or impropriety in the impugned order. Hence this Original Petition (Civil) is dismissed accordingly. Sd/- ## **(K. HARILAL, JUDGE)** **Nan/ //true copy//** ## **P.S. to Judge**