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High Court of KeralaSingle JudgeOriginal petition dismissed; Ext.P3 order upheld.

Saradhi Sukumaran v. Prakasan and Sulekha @ Sula

Case / Petition Number:OP(C).No. 2910 of 2017 (O)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Anil K. Narendran
  • Single Judge
Judgment Date
2017-10-05
Court Decision / Holding
Original petition dismissed. Ext.P3 order rejecting IA No.3941/2017 in OS 712/2014 stands; the court held that the plaintiff failed to show due diligence and that the amendment would protract the trial. The court also reaffirmed that Article 227 jurisdiction is supervisory and not appellate, and no manifest error was found in the below court’s decision.
Final Disposition
Original petition dismissed; Ext.P3 order upheld.

Parties to the Case

Appellants / Petitioners

  • SARADHI SUKUMARAN

Respondents

  • PRAKASAN
  • SULEKHA @ SULA

Legal Representation & Advocates

Counsels for Petitioners

  • • K.S.Hariharaputhran
  • • M.D.Sasikumaran
  • • George Mathew
  • • Sunil Kumar A.G
  • • Dipu James
  • • P.J.ShiJo

Case Synopsis & Summary

This is a Kerala High Court exercise of supervisory jurisdiction under Article 227 of the Constitution of India concerning an interlocutory order in OS No.712/2014 before the Addl. Munsiff, Alappuzha. The plaintiff-petitioner, in OS 712/2014, sought a decree for declaration of right over plaint schedule item No.2 pathway, a permanent injunction to restrain the defendants from obstructing its use, a mandatory injunction to remove obstructions, and other reliefs. The core issue arose from Ext.P1, an application under Order VI, Rule 17 CPC 1908 to amend the plaint to reflect the actual length of plaint schedule item No.2 pathway (75 meters), which was omitted in the plaint, based on an Advocate Commissioner’s report showing two inconsistent measurements (100 feet and 75 meters). Ext.P3 is the order dismissing this amendment. The defendants filed objections (Ext.P2). The court considered the Proviso to Order VI, Rule 17 (Code of Civil Procedure Amendment Act, 2002) and the jurisprudence requiring that amendments sought prior to trial be liberally allowed to determine the real dispute, while noting delay in filing. Citing Rajkumar Gurawara (2008) 14 SCC 364 and Sobhana Nair K.N. v. Shaji S. G. Nair (2016) (1) KHC 1, the court held there was no justification to interfere with Ext.P3 and dismissed the original petition. The result is dismissal of the petition; the Ext.P3 order stands.

Provisions of Law Cited

Article 227 of the Constitution of IndiaCode of Civil Procedure, 1908Order VI, Rule 17Proviso to Order VI, Rule 17Code of Civil Procedure (Amendment) Act, 2002

Legal Doctrines & Maxims

  • Liberal approach to pre-trial amendments under Order VI Rule 17 (pre-trial amendments to determine the real controversy)
  • Proviso to Order VI Rule 17 to expedite trial and restrict protraction of cases
  • Supervisory jurisdiction under Article 227 cannot substitute for appellate review; interference only for manifest error or perverse/ patently unreasonable reasoning
  • Due diligence standard in seeking amendments and necessity to show timely action
  • Trial should not be protracted by late amendments; pre-trial amendments preferred over post-trial amendments

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the omission of the length of plaint schedule item No.2 pathway in the plaint was inadvertent. By Ext.P1 under Order VI, Rule 17 CPC, he sought amendment to reflect the actual length as 75 meters, which is essential to framing the real controversy and determining the suit. He argues the amendment is necessary for justice, falls within the ambit of the proviso to Rule 17 because the omission did not occur before trial began and the delay was not due to deliberate disregard for procedural rules. He relies on Rajkumar Gurawara to support liberal pre-trial amendments and submits that non-disclosure in the plaint should be corrected to reflect true facts before trial proceeds. He also invokes the need to comply with the Advocate Commissioner’s report and avoid prejudice to himself and the court in adjudicating the matter.

Contentions of Respondents

The respondents oppose the amendment, arguing that the application is a tactic to protract the proceedings. They contend that the length discrepancy was already noted in the Advocate Commissioner’s report and that the plaintiff’s three-year delay to file Ext.P1 shows lack of due diligence, making the amendment prejudicial and unnecessary at this stage of the proceedings. They rely on the principle that amendments should not be allowed after the trial has commenced; delays in bringing such amendments should be viewed with suspicion and the court should not permit amendments that alter the core issues post-trial. The respondents emphasize that the Proceeding’s outcomes should not be delayed, and the court should adhere to the established trial timeline. They rely on Sobhana Nair’s view that supervisory jurisdiction is not appellate in nature and should not countenance unnecessary interference.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Rajkumar Gurawara (Dead) through Lrs. v. S.K. Sarwagi and Co. (P) Ltd.[(2008) 14 SCC 364]PositiveSupports liberal pre-trial amendments under Order VI Rule 17 to determine the real controversy.
Sobhana Nair K.N. v. Shaji S. G. Nair[2016 (1) KHC 1]PositiveAffirms supervisory jurisdiction under Article 227 and limits on appellate-like interference.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 5TH DAY OF OCTOBER 2017/13TH ASWINA, 1939** ## **OP(C).No. 2910 of 2017 (O) ---------------------------** **AGAINST THE ORDER/JUDGMENT IN IA NO.3941/2017 IN OS 712/2014 ON THE FILE OF COURT OF ADDL.MUNSIFF, ALAPPUZHA DATED 22.9.2017** ## **PETITIONER(S):/PETITIONER/PLAINTIFF -------------** ## **SARADHI SUKUMARAN,** **S/O. SUKUMARAN, AGED 38 YEARS, KANNANCHAM KAVU, VELIYIL VEEDU, MANNANCHERRY P.O, ALAPPUZHA - 688 538.** **BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW SRI.SUNIL KUMAR A.G SRI.DIPU JAMES SRI.P.J.SHIJO** ## **RESPONDENT(S):/COUNTER PETITIONERS/DEFENDANTS** ## **--------------** ## **1. PRAKASAN** **AGED 68 YEARS, S/O. SARADHA, KANNANCHAM KAVU VELIYIL, MANNANCHERRY P.O, ALAPPUZHA - 688 538.** ## **2. SULEKHA @ SULA,** - **AGED 63 YEARS, W/O. PRAKASAN, KANNANCHAM KAVU VELIYIL, MANNANCHERRY P.O, ALAPPUZHA - 688 538.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-102017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 2910 of 2017 (O)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 COPY OF I.A NO.3941 OF 2017 IN O.S NO.712 OF 2014 DTD. 18.09.2017 OF THE ADDL. MUNSIFF'S COURT, ALAPPUZHA.** **EXHIBIT P2 COPY OF OBJECTIONS DATED 18.09.2017 TO EXT P1** **EXHIBIT P3 COPY OF THE ORDER DATED 22.09.2017 IN I.A NO.3941 OF 2017 IN O.S. NO.712 OF 2014 OF THE ADDL. MUNSIFF'S COURT, ALAPPUZHA.** **RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL** **//TRUE COPY//** **PA TO JUDGE.** jg-24/10 ## **ANIL K.NARENDRAN, J.** **.................................................................... OP(C) No.2910 of 2017 .................................................................... Dated this the 5[th] day of October, 2017.** ## **J U D G M E N T** The petitioner is the plaintiff in OS No.712/2014 on the file of the Additional Munsiff's Court, Alappuzha. The said suit is one filed for a decree declaring his right over plaint schedule item No.2 pathway; a permanent prohibitory injunction restraining the defendants (respondents herein) from obstructing the use of plaint schedule item No.2 pathway; to remove the obstruction caused to plaint schedule item No.2 pathway through an order of mandatory injunction; and for other consequential reliefs. 2. The petitioner is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India, seeking an order to set aside Ext.P3 order dated 22.9.2017 of the court below in IA No.3941/2017. The said interlocutory application was filed under Order VI, Rule 17 of the Code of Civil Procedure, 1908 seeking an order to amend the plaint, in order to incorporate OP(C)No.2910/2017 -2- the actual length of plaint schedule item No.2 pathway as 75 meters, which was omitted to be noted in the plaint. The said application ended in dismissal by Ext.P3 order. 3. Heard the learned counsel for the petitioner. 4. Ext.P1 application, i.e., IA No.3941/2017 is one filed under Order VI, Rule 17 of the Code for amendment of the plaint. Going by the averments in the affidavit accompanying to Ext.P1 application, due to an inadvertent omission the length of plaint schedule item No.2 pathway was omitted to be mentioned in the plaint and also in the schedule appended to the plaint. In the report submitted by the Advocate Commissioner the length of plaint schedule item No.2 pathway is noted differently in two different places. The defendants have filed I.A.No.3911/2017 on 16.9.2017 seeking an order to set aside the report of the Advocate Commissioner. The plaintiff came to know about the omission to mention the length of plaint schedule item No.2 pathway in the plaint only OP(C)No.2910/2017 -3- from the affidavit accompanying to the said application. Thereafter, he filed IA No.3941/2017 under Order VI, Rule 17 of the Code seeking an order to amend the plaint. The relief sought for in IA No.3941/2017 was opposed by the defendants by filing Ext.P2 objections. 5. The report of the Advocate Commissioner referred to in Ext.P1 application is one dated 26.11.2014. According to the petitioner, in the said report the length of plaint schedule item No.2 pathway is noted differently in two different places. The fact that a copy of the said report was served on the learned counsel for the plaintiff in the year 2014 itself is not in dispute. However, the plaintiff took nearly three years to move IA No.3941/2017 under Order VI, Rule 17 of the Code seeking an order to amend the plaint. 6. The suit was included in the list for trial on 16.9.2017 and the plaintiff has also filed proof affidavit. On 16.9.2017, the defendants filed I.A.No.3911/2017 for setting OP(C)No.2910/2017 -4- aside the commission report. The plaintiff filed objection contending that the said application is filed only to protract the matter. In the said objections, the plaintiff has not disputed the fact reported by the Advocate Commissioner that, the length of plaint schedule item No.2 pathway is 100 feet. Thereafter, the plaintiff filed IA No.3941/2017 on 18.9.2017 seeking an order to amend the plaint in order to mention the length of plaint schedule item No.2 pathway as 75 meters. 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 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 such an application before commencement of trial and that, the amendment sought for is necessary for the purpose of OP(C)No.2910/2017 -5- determining the real controversy between the parties. 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. Pre-trial 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, 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 OP(C)No.2910/2017 -6- proviso. 9. In the instant case, the plaintiff could not explain the delay in filing the application for amendment of the plaint. The plaintiff could also not establish that in spite of due diligence, he could not file the said application before commencement of trial. In such circumstances, the court below cannot be found fault with in dismissing the application for amendment, i.e., IA No.3941/2017 by Ext.P3 order. 10. In **Sobhana Nair K.N. v. Shaji S. G. Nair [2016 (1) KHC 1]** a Division Behch 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 227 of the Constitution is called for, unless this Court finds that the lower court or OP(C)No.2910/2017 -7- 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. 11. Viewed in the light of the law laid down in the decision referred to above, I find absolutely no ground to interfere with Ext.P3 order passed by the court below. In the result, this original petition fails and the same is accordingly dismissed. **(ANIL K.NARENDRAN, JUDGE)** jg