Sreedharan Pillai v. Cleetus and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 3[RD] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 OP(C) NO. 1760 OF 2022** **AGAINST THE ORDER DATED 05.08.2022 IN OS NO.288 OF 2010 OF MUNSIFF MAGISTRATE COURT, SASTHAMCOTTA PETITIONER/RESPONDENT/PLAINTIFF:** **SREEDHARAN PILLAI,AGED 73 YEARS,S/O NARAYANA PILLAI POIKAYILAZHIKATHU VEEDU, MUTHUPILAKKADU PADINJARE MURI, SASTHAMCOTTAH VILLAGE, PORUVAZHI P.O, KOLLAM, PIN - 690520** **BY ADVS.DIPU.R K.S.BAIJU** **DEVI KRIPA R. P.V.SARITHA VENUGOPAL DHANYA BABU** ## **RESPONDENT/S:** - **1 CLEETUS,AGED 52 YEARS,KALLUMPURATH VEEDU, PANAPETTI MURI, SASTHAMCOTTAH VILLAGE, PORUVAZHY P.O, KOLLAM, PIN - 690520** - **2 SUSEELA,AGED 42 YEARS,W/O CLEETUS, KALLUMPURATH VEEDU, PANAPETTI MURI, SASTHAMCOTTAH VILLAGE, PORUVAZHY P.O, KOLLAM, PIN - 690520** - **3 MARYKUTTY,AGED 54 YEARS,SISTER OF CLEETUS, KALLUMPURATH VEEDU, PANAPETTI MURI, SASTHAMCOTTAH VILLAGE, PORUVAZHY P.O, KOLLAM, PIN - 690520** - **4 VIJAYAMMA,AGED 57 YEARS,W/O AMBROSE, PRASAD BHAVAN, MANAKKARA MURI, SASTHAMCOTTAH VILLAGE, SASTHAMCOTTAH P.O, KOLLAM, PIN - 690521** **5 PREETHI JACOB,ATHEENA BHAVAN, FROM PRASAD BHAVAN, MANAKKARA MURI, SASTHAMCOTTAH VILLAGE, SASTHAMCOTTAH P.O, KOLLAM, PIN - 690521 BY ADVS.MOHAN LAL B ASWIN V. NAIR(K/1019/2017) P.S.PREETHA(K/883/1998) AJAY S. KOSHY(K/003202/2022) JAYAPRABHA ARJUN(K/001757/2023)** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON** **03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** ## **C.JAYACHANDRAN, J. ======================= O.P.(C) No.1760 of 2022 ======================== Dated this the 3[rd] day of April, 2024** ## **JUDGMENT** **The petitioner herein is the plaintiff in O.S No. 288/2010 on the files of Munsiff Court, Sasthamkotta. The petitioner is aggrieved by Ext.P11 order, which allowed Ext.P9 application for amendment of Ext.P2 counter claim. Petitioner herein filed a suit for mandatory and permanent prohibitory injunction against the respondents (defendants 1 to 3, 5 and 6 in the suit). The case of the petitioner is that, he is the absolute owner of plaint schedule property, that the respondents/ defendants obstructed the petitioner/plaintiff from entering into the plaint schedule property and further encroached upon around 7 cents of the plaint schedule property. The defendants filed written statement, along with a counter claim, vide** ## **O.P.(C) No.1760 of 2022** -: 2 :- **Ext.P2. The main plank of contention raised by defendants was that the title deed of the plaintiff was false and fabricated and that the plaint schedule was in absolute possession and enjoyment of the 4[th] respondent/5[th] defendant, but is mistakenly shown as the plaintiff's property in resurvey. Counter claim was filed by the defendants along with the written statement seeking relief of injunction against the plaintiffs. Replication was filed by the plaintiff as Ext.P3. The suit was decreed** _**ex-parte thrice**_ **vide Exts.P4, P5 and P7 judgments, and the petitioner filed E.P. No.32/2018 to execute Ext.P7 judgment. The respondents/defendants filed A.S. No. 63/2018 before Sub Court, Karunagappally against Ext.P7 judgment and obtained a stay of proceedings in E.P. No.32/2018. Subsequently, the appeal was allowed, Ext.P7 judgment was set aside and Ext.P1** ## **O.P.(C) No.1760 of 2022** -: 3 :- **suit was remanded back to Munsiff Court, Sasthamkotta for fresh disposal. Therein, the respondents/defendants filed Ext.P9 I.A to amend Ext.P2 written statement with counter claim, which was allowed vide Ext.P11 order, without considering the objections of the petitioner/plaintiff, is the contention raised.** **2. Heard Sri. Dipu R, learned counsel for the petitioner and Sri. B.Mohanlal, learned counsel respondents 4 and 5. There was no representation for respondents 1 to 3, though they were duly served.** **3. Having heard the respective counsel for the parties, this court notice that the impugned order** ## **O.P.(C) No.1760 of 2022** -: 4 :- **is bad in law and cannot be sustained for the following reasons:** **(1)The relief sought for vide the amendment is barred by the law of limitation and the claim espoused is time barred. The petitioners have based their claim on sale deed no.154/1995 dated 13/01/1995 of the S.R.O Sasthamkotta and its parent document, a** _**patta**_ **numbered A6-10432/81 obtained from the Kunnathur Taluk. The defendants contend that, upon enquiry under the R.T.I Act, they were informed that no such** _**patta**_ **was issued to the plaintiff. Accordingly, the defendants seek to incorporate a prayer that the above sale deed executed by the petitioner/plaintiff fraudulently is** _**void ab initio.**_ **This court notice that the relief sought for to declare a document of the year 1995 as** _**void ab initio,**_ **stood time barred even at** ## **O.P.(C) No.1760 of 2022** -: 5 :- **the time of filing the written statement along with the counter claim. If that be so, the present amendment, so as to challenge the document and declare it as null and void, which is sought for in the year 2022 is hopelessly barred, wherefore, the amendment sought for cannot be allowed. The legal position in this regard is settled by a plethora of decisions, pertinently in a recent decision by the Hon'ble Supreme Court in** _**Life Insurance Corporation of India**_ **v.** _**Sanjeev Builders Private Limited and Another**_ **[2022 SCC OnLine SC 1128], wherein the Hon'ble Supreme Court went on to hold that the prayer for amendment is not liable to be allowed ordinarily, if the amendment raises a time barred claim, so as to divest the adversary part of a valuable right accrued.** ## **O.P.(C) No.1760 of 2022** -: 6 :- **(2) Secondly, the amendment sought for vide Ext.P9 seeks to retract an admission made in the written statement, as regards 10 cents of property obtained by the plaintiff by virtue of a** _**patta**_ **. By virtue of the proposed amendment, the defendant wants to incorporate a plea that no** _**patta**_ **was issued in favour of the plaintiff and that no property has been obtained under the** _**patta**_ **. In the written statement, the** _**patta**_ **and the plaintiff's title over 10 cents of land, out of the total 17 cents of the plaint schedule property, is clearly admitted and the dispute is only with respect to plaintiff's claim over the remaining 7 cents. By the amendment proposed, this admission is sought to be done away with. This is surely impermissible. This principle has been reiterated by the Hon'ble Supreme Court in** _**Life Insurance Corporation of India (supra),**_ **wherein the court held that a prayer for amendment** ## **O.P.(C) No.1760 of 2022** -: 7 :- **is to be allowed if, by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party, which confers a right on the other side. In** _**B.K Narayana Pillai**_ **v.** _**Parameswaran Pilai**_ **[(2000) 1 SCC 712], the Hon'ble Supreme court has held thus:** _**“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.”**_ **Ext.P9 application is liable to be dismissed on that count as well.** **(3) Thirdly, the amendment sought for by the** **respondents is not required to determine the real controversy between the parties. It is not necessary for the person claiming injunction to prove his title to the suit property and it would** ## **O.P.(C) No.1760 of 2022** -: 8 :- **be sufficient if he proves that he was in lawful possession of the property and his possession was invaded or threatened to be invaded by a person who had no title, whatsoever. In the given facts and circumstances, this court notice that, both parties have sought for injunction against each other (as seen from Ext.P1 plaint and Ext.P2 counter claim in the suit). Neither the plaintiff, nor the defendants sought for any declaration of title as per the unamended pleadings. This court therefore finds that the proposed amendment is unwarranted to determine the real dispute in controversy between the parties.** **(4) Lastly, the amendment has been sought for in violation of Ext.P8 judgment of the Sub Court, Karunagappilly, especially condition no.4 therein, subject to which the judgment and decree as against** ## **O.P.(C) No.1760 of 2022** **==> picture [34 x 9] intentionally omitted <==** **the respondent herein was set aside, thus affording a further opportunity for the respondent to contest the matter. The first appellate court had strictly directed the parties to file their applications, if any, before the trial court within 15 days after remand of the case, failing which, the trial court stood directed to dispose of the suit afresh, in accordance with law. Ext.P8 judgment is dated 13/10/2021, whereas Ext.P9 application for amendment preferred by the defendants is seen to be filed as on 23/02/2022, clearly after the stipulated time. This is not the first opportunity given to the defendants to bring out their case before the court. This court cannot, but notice the leniency bestowed on the defendants by the trial court on three occasions wherein all, they were set** _**ex parte.**_ **Gross negligence and laches on the part** ## **O.P.(C) No.1760 of 2022** -: 10 :- **of the defendants is evident from the conduct, despite affording ample opportunities.** **For the aforesaid reasons, this court finds that Ext.P11 order, allowing Ext.P9 amendment application, cannot be sustained. Ext.P11 order is therefore set aside. Ext.P9 application will stand dismissed.** **This Original Petition is allowed, as above.** **Sd/-** ## **C.JAYACHANDRAN, JUDGE** **vdv** ## **O.P.(C) No.1760 of 2022** ## -: 11 :- ## **APPENDIX OF OP(C) 1760/2022** **PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF PLAINT IN O.S NO. 288/2010 ON THE FILE OF MUNSIFF MAGISTRATE COURT AT SASTHAMCOTTAH Exhibit P2 THE TRUE COPY OF WRITTEN STATEMENT ALONG WITH COUNTER CLAIM IN O.S. NO. 288/2010 Exhibit P3 THE TRUE COPY OF THE WRITTEN STATEMENT FILED TO THE EXHIBIT P2 COUNTER CLAIM IN O.S. NO. 288/10 Exhibit P4 THE TRUE COPY OF JUDGMENT IN O.S. NO. 288/2010 DATED 27.10.2015 Exhibit P5 THE TRUE COPY OF JUDGMENT IN O.S NO. 288/2010 DATED 12.12.2017 Exhibit P6 THE TRUE COPY OF JUDGMENT IN OP(C) NO 450/2018, DATED 20-02-2018 Exhibit P7 THE TRUE COPY OF JUDGMENT IN OS NO 288/ 2010 DATED 21-07-2018 OF MUNSIFF MAGISTRATE COURT, SASTHAMCOTTAH Exhibit P8 THE TRUE COPY OF JUDGMENT IN AS NO 63/2018 DATED 13-10-2021 OF SUB COURT, KARUNAGAPPALLY Exhibit P9 THE TRUE COPY OF IA NO.3/2022 IN OS NO 288/2010 ON THE FILES OF MUNSIFF MAGISTRATE COURT SASTHAMCOTTAH Exhibit P10 THE TRUE COPY OF OBJECTION DATED 29/03/2022 FILED BY THE PETITIONER TO EXHIBIT P9 IA Exhibit P11 THE TRUE COPY OF ORDER IN IA NO 3/2022 IN OS NO 288/2010 DATED 05-08-2022 OF THE MUNSIFF MAGISTRATE COURT SASTHAMCOTTAH**