Salim Kumar v. K.P. Babu and Kesavan Nadar (aka Francis)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 26TH DAY OF OCTOBER 2017/4TH KARTHIKA, 1939** ## **OP(C).No. 3005 of 2017 (O)** ## **---------------------------** ## **PETITIONER/2ND DEFENDANT:** **-------------------------------------------** **SALIM KUMAR, AGED 37 YEARS, S/O. KESAVAN NADAR, MELEKUZHINJAVILA VEEDU, KARODE DESOM, KARODE VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.** ## **BY ADVS.SRI.THIRUMALA P.K.MANI SRI.P.E.SAJAL** ## **RESPONDENT(S)/PLAINTIFF & 1ST DEFENDANT:** **------------------------------------------------------------------------** **1. K.P. BABU, S/O. PALAYYAN, MUKKOLAKKAL, KARAKKAD VEEDU, PARASSALA DESOM, PARASSALA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM 695 039.** **2. KESAVAN NADAR @ FRANCIS, S/O. MUTHUNAYAKAM, MEKKEPUTHEN VEEDU, KALLAMPOTTA, MELEKUZHINJAVILA VEEDU, KARODE DESOM, KARODE VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695037.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **OP(C).No. 3005 of 2017 (O)** **---------------------------** ## **APPENDIX** ## **-----------------** ## **PETITIONER(S)' EXHIBITS** **--------------------------------------** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 25.09.2017 IN I.A. NO. 4400 OF 2017 IN O.S.NO. 653 OF 2012.** - **EXHIBIT P2 TRUE COPY OF THE AMENDMENT APPLICATION IN I.A.NO. 4400/2017 FILED BY THE PETITIONER .** - **EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE PLAINT IN O.S. NO. 653 OF 2012 FILED BY THE 2ND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS NIL** **--------------------------------------** **/TRUE COPY/** **PA TO JUDGE** **sdr/-** ## **ANIL K.NARENDRAN, J. --------------------------------------O.P.(C).No.3005 of 2017 ---------------------------------------Dated this the 26[th] day of October, 2017** ## **J U D G M E N T** The petitioner is the 2[nd] defendant in O.S.No.653 of 2012 on the file of the Principal Munsiff's Court, Neyyattinkara, which is a suit for permanent prohibitory injunction filed by the 1[st] respondent/plaintiff against the defendants therein from trespassing into the plaint schedule property; from demolishing the western boundary wall; and from committing any acts of waste. In the said suit, the petitioner/2[nd] defendant filed Ext.P3 written statement dated 27.07.2013. 2. On 07.08.2017, the suit was listed for trial for recording the evidence of parties. Thereafter, it was posted on 13.09.2017 and again on 18.09.2017 for evidence of parties. On 18.09.2017, the suit was notified to 25.09.2017. On that day, the petitioner/2[nd] defendant filed I.A.No.4400 of 2017, an application filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, seeking an order to amend Ext.P3 written statement, in order to incorporate certain additional contentions. The relief sought for in Ext.P2 interlocutory application was opposed by the 1[st] respondent/plaintiff, by filing counter contending, _inter alia,_ that the application for amendment is highly belated and not maintainable either in law or on facts. 3. After considering the rival contentions, the court below by 2 O.P.(C).No.3005 of 2017 Ext.P1 order dated 25.09.2017, rejected the said application. Feeling aggrieved by the said order, the petitioner/2[nd] defendant is before this Court in this Original Petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 4. Heard the learned counsel for the petitioner/2[nd] defendant. 5. The sole issue that arises for consideration in this Original Petition is as to the legality or otherwise of Ext.P1 order passed by the court below, whereby I.A.No.4400 of 2017 filed by the petitioner/2[nd] defendant under Order VI Rule 17 of the Code seeking an order to amend the written statement, stands rejected. 6. The suit filed by the 1[st] respondent/plaintiff is of the year 2012. In the said suit, the petitioner/2[nd] defendant filed Ext.P3 written statement as early as on 27.07.2013. After completing pretrial steps, the suit was listed on 07.08.2017 for recording the evidence of parties. Later, it was adjourned to 13.09.2017, 18.09.2017 and then it was notified to 25.09.2017. It was on that day that the petitioner/2[nd] defendant filed I.A.No.4400 of 2017, under Order VI, Rule 17 of the Code seeking an order to amend the written statement. 7. The proviso to Order VI, Rule 17 of the Code introduced by the Code of Civil Procedure (Amendment) Act, 2002 is intended to ensure speedy trial of cases by curtailing protraction of cases at the O.P.(C).No.3005 of 2017 3 trial stage. In a case where the trial has commenced, the Court can allow an application made for amendment of pleadings, if it comes to the conclusion that in spite of due diligence, the applicant could not file it before commencement of trial, and that the amendment sought for is necessary for the purpose of determining the real controversy between the parties. Though first part of Rule 17 gives unrestricted power to allow amendment of pleadings at any stage of the proceedings, if the court is satisfied that it is necessary for proper adjudication of the case, by virtue of the proviso to Rule 17, introduced in the year 2002, a restriction is cast on the power of the court to allow amendment after commencement of the trial. 8. In **Rajkumar Gurawara (Dead) through Lrs. v. S.K. Sarwagi and Co. (P) Ltd. [(2008) 14 SCC 364]** the Apex Court held that, Order VI, Rule 17 of the Code confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pretrial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. In the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, 4 O.P.(C).No.3005 of 2017 particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. 9. In the instant case, the petitioner/2[nd] defendant filed Ext.P3 written statement as early as on 27.07.2013. The present application for amendment was filed only on 25.09.2017, more than 4 years after the filing of written statement, contending that in Ext.P3 written statement the 2[nd] defendant omitted to plead nonjoinder of necessary party, since his wife who had executed a nominal sale deed in favour of one Anilkumar, with his knowledge and consent, in order to settle a family liability, is not made a party to the present suit. As such, the suit is bad for non-joinder of necessary party. She has also filed O.S.No.276 of 2012 before the Sub Court, Neyyattinkara in order to set aside that document and also some other documents, which the plaintiff in the present suit rely on. Further, the 2[nd] defendant failed to mention the correct number of the document in the written statement and omitted to mention the number of another document. He came to know about such mistake/omission only recently, while preparing for the trial of the suit. 10. In the affidavit in support of Ext.P2 application for amendment, 2[nd] defendant could not explain the inordinate delay of 5 O.P.(C).No.3005 of 2017 4 years in seeking amendment of Ext.P3 written statement. He could also not establish that, in spite of due diligence, he could not file such an application before commencement of trial. The reasons stated in the affidavit in support of Ext.P2 application that the 2[nd] defendant came to know about the mistake/omission in Ext.P3 written statement only recently, while preparing for the trial of the suit cannot be accepted as a valid ground. 11. In _**Abdul Khader v. Surburban Chit Funds (P) Ltd. (2006 (1) KLT 749)**_ this Court held that, delay in the judicial process will only be further aggravated if this Court by invoking the powers under Article 227 of the Constitution of India were to show undeserved indulgence to parties to a civil suit. An incorrect impression has gained ground that any and every error, inadequecy and contumacious lethargy in the conduct of civil cases can be corrected at later stages by approaching the superior courts. Law is for the alert. Justice can be claimed only by those who pursue the avenues open to them with diligence. The impression that the party and the counsel need open the case bundle only after the case is listed for trial must go at the earliest. Once issues are framed, it is the duty of the parties to contemplate the steps required to be taken in the suit and prompt and proper steps must be taken. 12. In the instant case, the petitioner/2[nd] defendant could not explain the delay in filing the application for amendment and he O.P.(C).No.3005 of 2017 6 could also not establish that, in spite of due diligence, he could not file such an application before commencement of trial. In such circumstances, the court below cannot be found fault with in dismissing the said application for amendment by Ext.P1 order. ## 13. In **Shalini Shyam Shetty v. Rajendra Shankar Patil** **[(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. ## 14. In **Sobhana Nair K.N. v. Shaji S.G.Nair (2016 (1) KHC** **1)** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 7 O.P.(C).No.3005 of 2017 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 15. Viewed in the light of the law laid down in the decisions referred to supra, the reasoning of the court below in rejecting the application for amendment by Ext.P1 order cannot be termed as either perverse or illegal, warranting an interference of this Court under Article 227 of the Constitution of India. In the result, the challenge made against Ext.P1 order fails and this Original Petition is accordingly, dismissed. Sd/- ## **ANIL K.NARENDRAN** **JUDGE** AV