Remya Raj v. Haleema Beevi, Hassanar and KTDFC

_**OP(C).346/21**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 30[TH] DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943 OP(C) NO. 346 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OS 415/2012 OF PRINCIPAL** **MUNSIFF COURT ,TRIVANDRUM, THIRUVANANTHAPURAM** **PETITIONER/S:** REMYA RAJ AGED 39 YEARS D/O.RAJAMANI, SWAMI AYYAPPAN, V.P.XII-648, MOONGODE P.O., THIRUVANANTHAPURAM. BY ADVS. M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.MAHESH ANANDAKUTTAN SMT.SHREEJI R. NAIR ## **RESPONDENT/S:** 1 HALEEMA BEEVI D/O.RAHIMA BEEVI, T.C.19/2001, ABHISHEKA, MUDAVANMUGHAL, THIRUMALA P.O., THIRUVANANTHAPURAM, NOW RESIDING AT NOORMAHAL, PARUTHITHOPPU, IT ROAD, NEAR SPINNING MILL, BALARAMAPURAM, THIRUVANANTHAPURAM-695501. 2 HASSANAR, S/O.PEERUMOHAMMED, T.C.19/2001, ABISHEK, MUDAVANMUGHAL, THIRUMALA P.O., THIRUVANANTHAPURAM, NOW RESIDING AT NOORMAHAL, PARUTHITHOPPU, IT ROAD, NEAR SPINNING MILL, BALARAMAPURAM, THIRUVANANTHAPURAM-695501. 3 THE MANAGING DIRECTOR, KTDFC, THIRUVANANTHAPURAM-695001. _**OP(C).346/21**_ 2 BY ADVS. SRI.A.B.MOHANAKUMAR SHRI.T.P.SAJAN, SC, KTDFC THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**OP(C).346/21**_ 3 ## **V.G.ARUN, J. ----------------------------------------------O.P(C).No. 346 of 2021 ----------------------------------------------Dated this the 30[th] day of September, 2021** ## **JUDGMENT** The petitioner is the additional 2[nd] plaintiff in O.S.No.415 of 2012 on the files of the Principal Munsiff’s Court, Thiruvananthpuaram. The suit was originally filed by the predecessor-in-interest of the petitioner with the following averments; The plaintiff owns 50 cents of land with a residential building and other structures. Defendants 1 and 2 induced the plaintiff into executing a sale deed with respect to the property showing the sale consideration to be Rs.62,50,000/-. Only Rs.49,50,000/- was paid by defendants 1 and 2 towards the sale consideration and the plaintiff retained possession of the property, on the specific understanding that possession will be handed over only after payment of the entire sale consideration. Out of the partial sale consideration paid by defendants 1 and 2, they borrowed a major portion on the strength of cheques and promissory notes. The cheques were dishonoured on presentation and a criminal _**OP(C).346/21**_ 4 complaint was lodged by the plaintiff. The plaintiff also came to understand that defendants had raised a huge loan by mortgaging his property with the KTDFC, with the active connivance of the 3[rd] defendant. While so, defendants 1 and 2 attempted to forcefully evict the plaintiff from the property and hence the suit was filed seeking a decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property, obstructing his peaceful possession, residence and enjoyment over plaint schedule property and from committing any waste therein till the defendants pay Rs.35 lakhs to the plaintiff. In the suit a temporary injunction was granted and the plaintiff continued to be in possession. 2. Pending the suit, the original plaintiff died on 24.7.2020 and the petitioner got impleaded as additional 2nd plaintiff on the strength of a registered will executed by the original plaintiff bequesting all his properties to the petitioner. After impleadment, the petitioner filed I.A.No.2 of 2020, seeking to amend the plaint on the premise that the original plaintiff had filed the suit hastily, without giving proper instructions to his lawyer and hence, there occurred serious inadequacies in the pleadings and the prayer. By the amendment, the petitioner proposed to make additional pleadings with respect to the transaction between the original _**OP(C).346/21**_ 5 plaintiff and defendants 1 and 2 and to substitute the main relief as under; “ _A) to pass a decree adjudging the sale deed No.2405/2005 of Malaynkeezhu Sub-Registry with respect to the plaint schedule property as void and to declare the original plaintiff's title and possession over the plaint schedule property and to pass a decree of consequential prohibitory injunction restraining the defendants from trespassing into the plaint schedule property and obstructing the peaceful possession, residence and enjoyment of the original plaintiff over the plaint schedule building tna dnot to commit waste therein so as to change the present lie and nature of the property in any manner. If in case the court finds that by virtue of the said sale deed the defendants are entitled to claim any right then the defendants 1 and 2 be directed to pay at least the sale consideration as shown in the document as a pre-condition to validate the said document.”_ 3. Objection to the amendment application was filed by respondents 1 and 2 jointly and by the 3[rd] respondent, separately. The main objection was that the relief sought to be incorporated is hopelessly barred by limitation and that if the amendment is allowed the suit valuation will be beyond the pecuniary jurisdiction of the Munsiff’s Court. 4. By Exhibit P4 order, the learned Munsiff dismissed the application for amendment finding that the relief sought to be incorporated is barred by limitation. Hence, this original petition. 5. Heard Smt.M.A.Zohra, for the petitioner, _**OP(C).346/21**_ 6 Sri.A.B.Mohankumar, for respondents 1 and 2 and Sri.T.P.Sajan for the 3rd respondent. 6. Learned counsel for the petitioner contended that, since the petitioner was impleaded as additional plaintiff at a later stage, she had every right to seek amendment of the plaint, so as to cure the infirmities in the plaint. It is pointed out that the original plaintiff himself had moved an application for amendment, but he expired before the application was taken up for consideration. After impleadment, petitioner had withdrawn the amendment application filed by the original plaintiff with the permission of the court and had filed a fresh application. As such, the petitioner cannot be attributed with delay in filing the application. Further, the amendment having been filed prior to the commencement of trial, the interdiction in the proviso to Order VI Rule 17 is not attracted. It is argued that limitation being a mixed question of law and fact, the trial court committed an illegality in rejecting the amendment on the ground that the relief sought is barred by limitation. Finally it is submitted that even if the relief is barred by limitation, the court below should have allowed the prayer for amending the pleadings. 7. The learned counsel for respondents 1 and 2 contended that the original plaintiff having made specific averments in the plaint regarding the transaction, the petitioner cannot be permitted _**OP(C).346/21**_ 7 to alter those pleadings. According to the learned counsel, the very nature of the suit will be changed if the amendments are allowed. In any event, the relief sought to be incorporated is barred by limitation. 8. The learned counsel for the 3[rd] respondent contended that the amendment application is filed by the petitioner in collusion with respondents 1 and 2, with the intention of delaying repayment of the huge amount of loan availed by respondents 1 and 2 on the strength of the sale deed executed in their favour by the original plaintiff. 9. The relief sought in the plaint, as originally filed, is for a permanent prohibitory injunction restraining defendants 1 and 2 from trespassing into the plaint schedule property and committing deleterious acts therein, till they pay an amount of Rs.35 lakhs to the plaintiff. By the proposed amendment, the petitioner seeks to substitute the relief to a decree, declaring the sale deed executed by the original plaintiff as void and for consequential prohibitory injunction and alternatively, to direct defendants 1 and 2 to pay at least the sale consideration as shown in the document as a precondition for validating the said document, in the event of the defendants being found entitled for any right by virtue of the sale deed. The sale deed was executed in 2005 and the original suit was _**OP(C).346/21**_ 8 filed only in 2012. The specific pleading is that, out of the sale consideration of Rs.62,50,000/-, an amount of Rs.49,50,000/- was paid by way of demand draft. Of course, the plaintiff has a contention that from the partial consideration paid, a major chunk was borrowed by defendants 1 and 2 and never repaid. The original plaintiff, who had executed the sale deed in favour of the 1[st] defendant, did not seek a declaration that the document is void. The settled position is that if an independent suit filed on the date on which the amendment is filed, would be barred by limitation, then the amendment cannot be entertained. In _**Revajeetu Builders & Developers v. Narayanaswamy & Sons**_ [(2009) 10 SCC 84], the Honourable Supreme Court opined that the following basic principles should be borne in mind while considering an application for amendment; - _“Factors to be taken into consideration while dealing_ - _with applications for amendments_ _63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:_ - _(1) whether the amendment sought is imperative for_ - _proper and effective adjudication of the case;_ - _(2) whether the application for amendment is bona_ - _fide or mala fide;_ - _(3) the amendment should not cause such prejudice_ - _to the other side which cannot be compensated_ _**OP(C).346/21**_ 9 _adequately in terms of money;_ _(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;_ _(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and_ _(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.”_ I am unable to accept the contention of the learned counsel for the petitioner that limitation being a mixed question of law and fact, the amendment application ought to be allowed and the parties allowed to let in evidence on the question of limitation. The relief of declaration would have been barred even if made in the plaint itself and therefore, cannot be permitted to be brought in by way of amendment. Being so, the additional plaintiff, who is not a party to the document, cannot be permitted to challenge the document by incorporating new pleadings and relief. 10. A perusal of the amendment application shows that, other than the challenge against the sale deed of 2005, there are pleadings pertaining to the relationship between the parties. I am unable to uphold the finding of the court below that whatever is sought by way of amendment is inextricably connected with the relief sought to be incorporated. Except the amendment sought to be incorporated to the cause title and the incorporation of _**OP(C).346/21**_ 10 additional sentence in paragraph 22, introduction of paragraph 23 and substitution of the relief, other pleadings sought to be incorporated have nothing to do with the prayer for setting aside the document. In my opinion, pleadings, other than those pertaining to execution of the sale deed, being clarificatory in nature, can be allowed. In the result, the original petition is allowed in part. The impugned order, to the extent it rejects the substitution of the relief from permanent prohibitory injunction to a declaration that the sale deed is void and the addition of certain words and sentences to the cause title, paragraphs 22 and 23 of the plaint, is affirmed. The order, insofar as it rejects the prayer for amending the plaint with respect to the pleadings other than those mentioned above, is set aside. Being a suit of the year 2012, the court below shall take earnest efforts to dispose of the suit expeditiously. Sd/- **V.G.ARUN, JUDGE** _vgs_ _**OP(C).346/21**_ 11 ## **APPENDIX OF OP(C) 346/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.415/2012 ON THE FILE OF THE MUNSIFF'S COURT, THIRUVANANTHAPURAM. EXHIBIT P2 TRUE COPY OF I.A.NO.2/2020 02.12.2020 SEEKING TO AMEND THE PLAINT INVOLVING THE PROVISIONS OF ORDER 6 RULE 17 OF C.P.C. EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY RESPONDENTS 1 TO 3 TO I.A.NO.2/2020. EXHIBIT P4 TRUE COPY OF THE ORDER OF THE PRINCIPAL MUNSIFF'S COURT, DATED 18.01.2021 IN I.A.NO.2/2020 IN O.S.NO.415/2012.