Rosamma v. Kunjunjamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932** ## **WP(C).No. 32927 of 2009(O)** **---------------------------------------** **OS.227/1994 of SUB COURT, PALA** **....................** ## **PETITIONER(S):** **-------------------------** **ROSAMMA, W/O.MATHEW, NEDUMPALAKKUNNEL, VALLICHIRA KARA, MEENACHIL TALUK.** **BY MR.T.KRISHNAN UNNI, SENIOR ADVOCATE BY ADVS. MR.SAJU.S.A MR.C.M.MOHAMMED IQUABAL** ## **RESPONDENT(S):** **--------------------------** **1. KUNJUNJAMMA, W/O.LATE GEORGE JOSEPH, KODIYAMPURAYIDATHIL, ANDOOR KARA, ELAKKAD VILLAGE,MEENACHIL TALUK.** **2. SIMI, D/O.LATE GEORGE JOSEPH,** - **-DO- -DO-** **3. SIJI, D/O.LATE GEORGE JOSEPH,** - **-DO- -DO-** **4. SINI, D/O.LATE GEORGE JOSEPH,** - **-DO- -DO-** **R1 TO R3 BY ADV. MR.TOM JOSE (PADINJAREKARA)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON 23/03/2010 DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.32927/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN AS. 52/1999 DTD. 24.3.09.** **P2:- COPY OF THE IA. 1798/09 IN OS. 227/94 ON THE FILE OF SUB COURT, PALA DTD. 9.11.09.** **P3:- COPY OF THE ORDER OF THE COURT OF THE SUB JUDGE , PALA IN IA. 1798/09 IN OS. 227/1994 DTD. 12.11.09.** ## **RESPONDENT'S EXHIBITS** **R1(a):- COPY OF THE ORDER OF THE COURT BELOW DTD. 12.6.09 IN IA. 758/09.** **R1(b):- COPY OF THE A4 LETTER DTD. WRITTEN BY THE TESTATOR.** **TRUE COPY** ## **P.S. TO JUDGE** **tss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 32927 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2010. ## **JUDGMENT** Aggrieved by the order dated 12.11.2009 in I.A. 1798 of 2009 in O.S. No.227 of 1994, by which the trial court allowed an amendment of the written statement, the plaintiff in O.S. 227 of 1994 before the Sub Court, Pala has come up in appeal. 2. The petitioner instituted O.S. 227 of 1994, which is a suit for declaration and recovery of possession on the strength of title, mesne profits and also for injunction. The respondents are defendants 2 to 5. The first defendant, who was the brother of the petitioner died during the pendency of the suit. The respondents are his legal heirs. WPC. 32927/2009. 2 3. According to the petitioner, the plaint schedule property originally belonged to Ouseph, father of the plaintiff and the first defendant. He is alleged to have executed a will in June, 1979 and the plaint schedule properties, which consisted of two items are included in schedule E to the will. Ouseph died in 1991. Before his death he had assigned item No.1 of the plaint schedule property to the plaintiff. At the time of death of Ouseph, it was not available for bequeath. As per the terms of the will, item No.2 to the plaint schedule was to devolve on the mother of the plaintiff and the first defendant, namely Aley. Only after the life time of the mother, property was to devolve on the legatees. It is the case of the petitioners that Aley was given right to alienate the property during her lifetime. Consequent on the death of Ouseph, Aley took possession as per the terms of the will. She is said to have assigned item No.2 to the petitioner. Thereby, petitioner became the absolute owner of both items 1 and 2 to the plaint. It is claimed that defendants 2 to 4 were allowed to reside in the house by the plaintiff. WPC. 32927/2009. 3 After the death of his mother, he wanted them to vacate. They did not do so. That necessitated the suit. 4. Defendants 2 to 5 contested the suit. They assailed the assignment of item No.1 in favour of the plaintiff. As regards item No.2, their contention was that the right of the mother was confined to life estate and therefore she could not assign the property to the plaintiff. They therefore contended that the claim of the plaintiff that he had absolute rights over plaint items 1 and 2 cannot be accepted. 5. It appears that parallel letters of administration proceedings were initiated before the District Court, Kottayam with respect to the will. Based on the findings in the L.A.O.P., the trial court found that the assignments in favour of the plaintiff are valid, and the suit was decreed. 6. The matter was carried in appeal as A.S. 52 of 1999 by the defendants. That was taken up along with the appeal from L.A.O.P., MFA 1276 of 1997. On a consideration of the materials before it, this court came to the conclusion WPC. 32927/2009. 4 that the trial court was not justified in coming to the finding as it did solely based on the findings in L.A.O.P. proceedings. This court was of the opinion that an independent evaluation of the evidence and an independent enquiry ought to have been conducted by the court below while deciding the issues involved in the suit and remanded the case. Ext.P1 is the said judgment. 7. After remand, it is said that the suit came up for trial and the period fixed by this court had already expired. It was included in the list for trial on 16.11.2009. On 9.11.2009 the defendants said to have filed an amendment application of the written statement incorporating new pleas including one of non-joinder of necessary parties as per I.A. 1798 of 2009. Copy of the said petition is produced as Ext.P2. That was opposed by the petitioner. But overruling the objections of the petitioner, the amendment application was allowed and the order is produced as Ext.P3. The said order is under challenge. WPC. 32927/2009. 5 8. Learned counsel appearing for the petitioner pointed out that the court below was not justified in allowing the amendment and it fell outside the scope of the remand order by this court. It was also pointed out that the court below has omitted to note the proviso to Order VI Rule 17 of the Code. The further contention was that the court below ought to have noticed that new matters are sought to be brought in by way of amendment, which is impermissible in law. An amendment is sought for incorporating a plea of non-joinder of necessary parties, which was to be taken at the earliest stage. This according to learned counsel is not warranted in law. 9. Learned counsel appearing for the respondents on the other hand pointed out that the amendments are only clarifications or explanations or giving of particulars of the pleas already available in the written statement and that does not constitute any new plea. The amendment sought for are with reference to the will which was already available in the first instance. Further amendment was WPC. 32927/2009. 6 sought for on the basis of Ext.A4 document, which was produced by the plaintiff herself. Therefore it was contended that the socalled amendment cannot be said to have taken by surprise nor she is justified in saying that she is prejudiced by the order allowing amendment of the written statement. 10. Copy of the amendment application made available to this court shows that the amendment sought for were with reference to Ext.A4 produced by the plaintiff herself. It is true that this court had fixed a time limit for disposal of the suit. The amendments sought for under the documents said to have been executed by the father of the petitioner in favour of the petitioner is not valid in law. Annexure A4 letter shows the real state of affairs, and that shows the state of health of the assignor at the time of executing the document. Then the said amendment sought for is with reference to the assignment made by the mother. Yet another amendment is to the effect that improvements WPC. 32927/2009. 7 have been made in the property by the first defendant. Of course there is also a plea of non-joinder of necessary parties. 11. Before going further into the issues, it may be useful to refer to the order of remand made by this court. The relevant paragraph is paragraph 31. The following paragraph is also relevant in this context: _“Since the matter is remitted to the court below, and the judgment and decree is set aside, the court below will consider the question afresh, including the question of mesne profits.”_ 12. Order VI rule 17 of the CPC reads as follows: _“_ _**17. Amendment of pleadings** .- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:_ WPC. 32927/2009. 8 _Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”_ The contention taken is that there is no finding by the court that the pleadings now taken by the defendants in the written statement could not have been raised by them even after due diligence at the earlier stage. According to learned counsel the amendment of the written statement is a matter of course and circumscribed by the Code. After the recent amendment of the CPC, the provisions have become very stringent. According to learned counsel the court below has not properly applied the proviso to the issue on hand. 13. In reply, the learned counsel for the respondents pointed out that no new grounds are sought to be introduced in the written statement and the nature of the amendments which are sought for are only explanatory WPC. 32927/2009. 9 in nature. None of the amendments sought for introduced a new plea or defence and therefore the petitioner cannot have any grievance. 14. The principles regarding the amendment of pleadings are well settled. By now it is well established that if the court concerned finds that the amendment is necessary to avoid multiplicity of suit or for effective adjudication of the suit and the issues involved in the suit, even though the amendment sought for is belated, that should be allowed. It has also been held that any injury that may be caused can be compensated by awarding costs. 15. In the case on hand there is nothing to show that except the amendment sought for with reference to the non-joinder of necessary parties, the other amendments introduced any new pleading. True, there is a claim that improvements in the property have been made by the first respondent. But one has to notice that the claim of the first respondent is that he is in possession of the property and the document executed in favour of the plaintiff by her WPC. 32927/2009. 10 parents are invalid in law. It could not be said that any new material is introduced. It is only explanatory in nature as rightly pointed out by the learned counsel for the respondents. 16. But the matter stands on a different footing as far as the plea of non-joinder is concerned. That was a plea which was available to the first defendant at the first stage and there were no reasons given as to why he has not taken that plea at the initial stage. If the finding goes in favour of the first defendant, that will cause considerable prejudice to the plaintiff in maintaining the suit. 17. In the decision reported in **Ragu Thilak D. John v. S. Rayappan** ((2001) 2 SCC 472) it was held as follows: _“In view of the subsequent developments, the appellant filed an application under Order 6 Rule 17 for the amendment of the plaint for adding paras 8(a) to 8(f) in his plaint. The trial court rejected his prayer and the revision petition filed against that order was dismissed by the High_ WPC. 32927/2009. 11 _Court vide order impugned in this appeal, mainly on the ground that the amendment, if allowed, would result in introducing a new case and cause of action. It was further held that as the appellant was seeking recovery of damages, the amendment could not be allowed as it would allegedly change the nature of the suit. It was also observed that the amendment sought was barred by limitation._ _After referring to the judgments in Charan Das v. Amir Khan, L.J. Leach &Co. Ltd. v. Jardine Skinner & Co., Ganga Bai v. Vijay Kumar, Ganesh Trading Co. v. Moji Ram and various other authorities, this Court in B.K. Narayana Pillai v. Parameswaran Pillai held:_ _“3. The purpose and objection of Order6 rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be_ 12 WPC. 32927/2009. _compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation.”_ 18. In the decision reported in **Baldev Singh v. Manohar Singh** (2006(3) KLT 953(SC))the approach that the courts should make in deciding an application for amendment was emphasized. In that decision the court held as follows: _“Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. O.6 R.17 of the ode of Civil Procedure deals with amendment of pleadings which provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. A bare perusal of this provision, it is pellucid that O.6_ WPC. 32927/2009. 13 _R.17 of the ode of Civil Procedure consists of two parts. The first part is that the Court may at any stage of the proceedings allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore, in view of the provisions made under O.6 R.17 of the CPC it cannot be doubted that wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. While dealing with the prayer for amendment , it would also be necessary to keep in mind that the Court shall allow amendment of pleadings if it finds that delay in disposal of Suit can be avoided and that the suit can be disposed of expeditiously. But the Code of Civil Procedure (Amendment) Act, 2002 a proviso has been added to Order 6 Rule 17 which restricts the Courts from permitting an amendment to be allowed in the pleadings either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, Court may allow amendment if it is satisfied that in spite_ WPC. 32927/2009. 14 _of due diligence, the party could not have raised the matter before the commencement of trial. “_ ## 19. In the decision reported in **B.K. Narayana Pillai v. Parameswaran Pillai** ((2000) 1 SCC 712) it was held as follows: _“The mere fact that the appellant had filed the application after a prolonged delay could not be made a ground for rejecting his prayer particularly when the respondent-plaintiff could be compensated by costs. the finding of the High Court that the proposed amendment virtually amounted to withdrawal of any admission made by the appellant and that such withdrawal was likely to cause irretrievable prejudice to the respondent is erroneous._ _The purpose and object of Order 6 Rule 17CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that_ WPC. 32927/2009. 15 _the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation._ _The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as the question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of_ WPC. 32927/2009. 16 _the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings.”_ 19. In the light of the principles above mentioned, the amendment now sought for by the defence do not militate against any of the principles so laid down by the apex court. No prejudice whatsoever is caused to the plaintiff by the amendment sought to be incorporated by the defendants except the one relating to non-joinder. That as already stated stands on a different footing. WPC. 32927/2009. 17 In the result, this petition is partly allowed and that portion of the order in I.A.1798 of 2009, which permits amendment of the written statement incorporating the plea of non-joinder of necessary parties is quashed and the rest of the order is maintained. **P. BHAVADASAN, JUDGE** sb.