Sajan Varghese v. Jainamma and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 ``` ## **`OP(C) NO. 1439 OF 2015`** **`AGAINST THE ORDER/JUDGMENT`** in IA No.510/2015 IN **`OS 407/2011`** ## **`OF SUB COURT,NEYYATTINKARA`** ## **`PETITIONER/S:`** ``` SAJAN VARGHESE AGED 44 YEARS S/O.THANKAPPAN NADAR, PUTHENVEETTIL, CHENNIYODU THEKKEKKARA, KARODU VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT-695 121. BY ADV SRI.MATHEW KURIAKOSE ``` ## **`RESPONDENT/S:`** ``` 1JAINAMMA AGED 63 YEARS W/O.SATHYANESAN @ SYAMUEL, KALIYALKETTIYA VEETTIL, KANJIRAMKULAM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT-695 121. 2SHIBI AGED 25 YEARS D/O.JAINAMMA, KALIYALKETTIYA VEETTIL, KANJIRAMKULAM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT-695 121. 3SHIBIN AGED 23 YEARS S/O.JAINAMMA, KALIYALKETTIYA VEETTIL, KANJIRAMKULAM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT-695 121. BY ADV.RUBY V J ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.1439 of 2015 ## **C.S DIAS,J.** **--------------------------OP(C) No.1439 of 2015** **----------------------------Dated this the 1[st] day of March, 2023.** ## **JUDGMENT** The original petition is filed challenging Ext P4 order passed in IA No.510/2015 in OS No.407/2011 by the Court of the Subordinate Judge, Neyyattinkara. The petitioner is the plaintiff and the respondents are the defendants in the suit. 2. The antecedent facts leading to Ext P4 order are: 2. (i). The suit is filed for recovery of money from the respondents. 2. (ii). The petitioner and the respondents were represented by the same Advocate office. 2.(iii). Later, the petitioner came to learn that important pleadings were omitted to be pleaded in the plaint. 3 OP(C) No.1439 of 2015 2.(iv). Immediately, the petitioner engaged another counsel and filed IA No.510/2015 (Ext P3) seeking leave to amend the plaint. The application was opposed by the respondents. 2.(v). The court below, by the impugned Ext P4 order, has rejected Ext P3 application. 2.(vi). Ext P4 order is palpably wrong and unsustainable in law. Hence the original petition. 3. Heard; Sri.Mathew Kuriakose, the learned Counsel appearing for the petitioner and Smt.V.J Ruby, the learned Counsel appearing for the respondents. 4. The question is, whether there is any illegality in Ext P4 order. 4 OP(C) No.1439 of 2015 5. The specific case of the petitioner in Ext P3 application is that he and the respondents were represented through the same Advocate office. 6. The petitioner was later made to understand that important pleadings were omitted to be averred in the plaint. 7. Accordingly, the petitioner filed Ext P3 application seeking leave to amend the plaint. 8. Nevertheless, the court below, by the impugned Ext P4 order, dismissed the application on the ground that it is filed after the commencement of trial. 9. On a perusal of the pleadings and materials on record, it can be gathered that the suit was only listed for trial. 10. It is trite; trial commences only after the filing of the proof affidavit in lieu of chief examination. 5 OP(C) No.1439 of 2015 11. In **Life Insurance Corporation of India vs. Sanjeev Building (P) Ltd** [2022 SCC Online SC 1128], the Hon’ble Supreme Court has laid down exhaustive guidelines to deal with applications for amendment of pleadings. It is, inter alia, held that applications for amendment of pleadings have to be liberally considered, and are to be rejected only on the grounds that the claim sought to be incorporated is time barred or hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure etc. 12. Going by the pleadings in Ext P3 application, I hold that the application is not hit by any of the disqualifications laid down in **Life Insurance Corporation of India** (supra). 13. Taking into consideration the peculiar circumstances of the case, that the petitioner was not granted an opportunity to plead his case in view of the fact that the same Advocate 6 OP(C) No.1439 of 2015 office was appearing for both sides, I am constrained to take a lenient view in the matter. 14. Hence, I am inclined to allow the original petition, subject to the right of the respondents to file an additional written statement to the amended plaint. Resultantly, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I allow the original petition as follows: (i) Ext P4 order is set aside. (ii) Ext P3 application is allowed. (iii) The petitioner shall carry out the amendment of the plaint within the prescribed time period. (iv) The respondents shall file their additional written statement to the amended plaint within one month from the date the amendment is carried out. 7 OP(C) No.1439 of 2015 (v) As the suit is of the year 2011, the Court of the Subordinate Judge, Neyyattinkara, is directed to consider and dispose of OS No.407/2011, in accordance with law and as expeditiously as possible. **SD/-** sks/1.3.2023 **C.S.DIAS, JUDGE** 8 OP(C) No.1439 of 2015 ## **`APPENDIX OF OP(C) 1439/2015`** ``` PETITIONER EXHIBITS ``` ``` P1 : TRUE COPY OF THE PLAINT IN OS.NO.407 OF 2011 ON THE FILES OF THE SUB COURT, NEYYATTINKARA. P2 : TRUE COPY OF THE WRITTEN STATEMENT IN OS.NO.407 OF 2011 ON THE FILES OF THE SUB COURT, NEYYATTINKARA. P3 : TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN IA.NO.510 OF 2015 IN OS.NO.407 OF 2011 ON THE FILES OF THE SUB COURT, NEYYATTINKARA. P4 : TRUE COPY OF THE ORDER DATED 16-6- 2015 IN IA.NO.510 OF 2015 IN OS.NO.407 OF 2011 ON THE FILES OF THE SUB COURT, NEYYATTINKARA. ```