Suchithra Nair alias Ammini and G.K. Thulaseedharan Nair v. S.K. Thankaraj

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WP(C).No. 1534 of 2010(O) ------------------------IA NO.4152/2009 IN OS.467/2004 of I ADDL.SUB COURT,THIRUVANANTHAPURAM .................... PETITIONER(S): --------------- 1. SUCHITHRA NAIR ALIAS AMMINI, D/O.JANAKI PILLAI AND WIFE OF G.K.THULASEEDHARAN NAIR, AGED 53 YEARS, KRISHNA VILASOM BUNGLOW, AAYIRAM THOPPU, THEKKE PUNK, KARIKAKKOM MURI,KADAKAMPALLI VILLAGE, THIRUVANANTHAPURAM, RESIDING AT HOUSE NO.68, THANI SANDRA ROAD, BEHIND `SYSTEM ALLOYS',NAAGAVARAM, ARABIC COLLEGE P.O., BANGALORE. 2. G.K.THULASEEDHARAN NAIR, RETD. COLONEL, S/O.GOVINDA KURUP, AGED ABOUT 62 YEARS, RESIDING AT HOUSE NUMBER 68, THANI SANDRA ROAD, BEHIND `SYSTEM ALLOYS', NAAGAVARAM, ARABIC COLLEGE P.O., BANGALORE. BY ADV. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU RESPONDENT(S): --------------- S.K.THANKARAJ, S/O.SIMSON, AGED 60 YEARS, T.C.17/1048, SOWBHAGYA, MELE CHERUKARA ROAD, POOJAPPURA, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM. ADV. SRI.A.N.KUTTAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.1534/2010 ## APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.467/2004 FILED BEFORE THE 1ST ADDL.SUB COURT, THIRUVANANTHAPURAM. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT EXT.P3 TRUE COPY OF THE SALE AGREEMENT EXT.P4 TRUE COPY OF THE B DIARY OF THE 1ST ADDL.SUB COURT, THIRUVANANTHAPURAM EXT.P5 TRUE COPY OF THE AMENDMENT APPLICATION FILED AS IA NO.4152/2009 IN OS 467/04 BEFORE THE FIRST ADDL.SUB COURT, THIRUVANANTHAPURAM EXT.P6 TRUE COPY OF OBJECTION TO EXT.P5 FILED BY DEFENDANTS EXT.P7 TRUE CPY OF DEPOSITION OF PW1 PLAINTIFF IN OS 467/2004 EXT.P8 TRUE COPY OF ORDER IN IA NO.4152/2009 IN OS 467/2004 OF 1ST ADDL.SUB COURT, THIRUVANANTHAPURAM //TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------W.P.(C) No.1534 of 2010 -------------------------------------Dated this the 2[nd] day of July, 2010.** ## **JUDGMENT** Respondent entered into Ext.P3, agreement for sale dated 03.09.2003 with petitioners as per which the latter was to purchase property described in that agreement, 2.22 acres in various survey numbers for consideration stated therein. It is not disputed that pursuant to that agreement, portions of property referred to therein were assigned by petitioners to the nominees of respondent as per direction of the latter. Alleging that regarding remaining portion of property petitioners have not performed their part of contract notwithstanding willingness on the part of respondent the latter sued former in the court of learned Additional Sub Judge-I, Thiruvananthapuram in O.S.No.467 of 2004. Petitioners filed written statement in the year 2004 contending that balance sale consideration payable to them is not as stated in the plaint and pointing out some discrepancy in the extent of property referred to in the plaint schedule. Examination of witnesses commenced on 05.06.2007. Both sides examined their witnesses and evidence was closed on 06.07.2007. Thereafter the matter was being posted on several days for hearing as Ext.P4, copy of B diary reveals. In the meantime case was posted for orders on 10.12.2008. Thereafter respondent appeared in person and stated that since advocates of the station are boycotting courts he wanted to engage another advocate. Thereafter respondent filed Ext.P5, application on 10.07.2009 for amendment of plaint. **WP(C) No.1534/2010** 2 Amendment related to the schedule of properties in the plaint to correct extent of property in two survey numbers though there was no difference in the total extent of property. Further amendment sought was regarding balance amount payable to the petitioners. Another item of amendment concerned parallel criminal proceeding which ofcourse leaned Sub Judge has not allowed and hence is not necessary to be referred here. According to the learned counsel for petitioners/defendants application for amendment was objected but, learned counsel for respondent would assert that no written objection was preferred by petitioners. Learned Sub Judge vide Ext.P8, order dated 19.11.2009 permitted amendment except portion relating to criminal case. That order is under challenge in this Writ Petition at the instance of petitioners/defendants. Learned counsel for petitioners contended that in the nature of contentions raised in the written statement amendment at a belated stage ought not have been permitted since respondent who was a real estate broker was alerted about contention of petitioners but, no action was taken until 10.07.2009 to amend the plaint. According to the learned counsel, it was also brought out from evidence of respondent when examined as PW1 as to the discrepancy in the plaint schedule and balance sale consideration payable to petitioners as per Ext.P3. But inspite of that, no action was taken for about two years. It is only on the fag end on 10.07.2009 that Ext.P5, application for amendment was preferred. Learned counsel has referred me to the proviso to Rule 17 of Order VI of the Code of Civil Procedure (for short, “the Code”) and contended that **WP(C) No.1534/2010** 3 respondent could not have sought amendment and the learned Sub Judge went wrong in allowing amendment without even holding that inspite of exercise of due diligence respondent could not seek amendment before trial commenced. Reliance is placed on the decisions in **Rajkumar Gurawara v. M/s.S.K.Sarwagi & Co. Pvt.Ltd. [AIR 2008 SC 2303], Chander Kanta Bansal v. Rajinder Singh Anand [AIR 2008 SC 2234]** and **Eapen Antony v. Joseph and another [2009 (1) ILR Kerala 712]** . In response it is contended by learned counsel for respondent that respondent had filed an additional affidavit dated 29.07.2009 explaining the circumstances under which he could not seek amendment of plaint prior to 10.07.2009 and though learned Sub Judge has not specifically stated in the order that inspite of due diligence respondent could not seek amendment it was with additional affidavit on record that learned Sub Judge has disposed of application for amendment and hence no interference is called for. It is also contended that amendment brought out does not in any way change or alter character or nature of the suit or, reliefs prayed and as such petitioners are not put in any prejudice whatsoever. Learned counsel has placed reliance on **Puran Ram v.** **Bhaguram and another [(2008) 4 SCC 102]** and **M.P.Rajasekharan Nair v. Raju & Another [2003 (2) KLJ 847]** . Reliance is also placed on the decision in **Eapen Antony v. Joseph and another (2009(1) ILR Kerala 713** ) (supra). **WP(C) No.1534/2010** 4 2. In deciding the issue it is relevant to refer to Ext.P4, B diary. It is seen from Ext.P4 that examination of witnesses started on 13.06.2007 and it continued thereafter. On 06.07.2007 both sides were represented but witnesses were not present. Hence there was a request on the part of counsel for petitioners to adjourn the case. Accordingly, for further evidence (of petitioners) case was adjourned to 13.07.2007. That day, witnesses for petitioners were not present and on the submission of counsel for petitioners evidence was closed and case was posted on 24.07.2007 for hearing. Though the case was posted for hearing on several days, on all those days there was request by both or any of counsel for parties and accordingly case was being adjourned. In the meantime, case was heard in part. It is seen from order dated 28.11.2008 that the case was posted for hearing on 16.07.2008, 23.07.2008, 08.08.2008, 21.08.2009, 26.08.2009, 30.08.2009, 18.09.2008, 18.10.2008 and on 28.11.200 but, counsel on both sides were not ready to argue the matter. Then case was posted on 10.12.2008 for orders. That day, advocates of the station boycotted courts and respondent was present in the court. Learned Sub Judge ordered on 10.12.2008 that “learned Senior counsel for plaintiffs was seen being unprepared to argue the matter for last several months. Call on 20.06.2009”. On 20.06.21009 respondent appeared in court in person and told learned Sub Judge that he is engaging another advocate to conduct the case. Accordingly case was posted on 10.07.2009 for hearing. It is while so that Ext.P5 application for amendment came. **WP(C) No.1534/2010** 5 3. Now I shall refer to the points sought to be incorporated by amendment as per Ext.P5. In Ext.P3, agreement and, following that in the plaint it was stated that Ext.P3, agreement took in 70 cents in survey No.1931/3-2 and one acre in survey No.1930/3-1. The correction sought for is “38 cents in survey No.1931/3-2 and 1.32 acres in survey No.1930/3-1”. There is no correction prayed for in survey numbers or total extent of land but the extent involved in each survey number differed in the plaint as it was carried from Ext.P3. According to the respondent this mistake was noted when the power of attorney executed by petitioner No.2 in favour of petitioner No.1 was produced in court. Similarly the balance consideration payable to petitioners also is sought to be corrected by amendment. 4. Now the question is whether the said amendment ought to have been allowed. Going by Order VI Rule 17 of the Code amendment is permissible at any stage of the proceedings. But a proviso had been added to Rule 17 by Amendment Act of 2002 which states that once trial has commenced amendment shall not be permitted except where inspite of exercise of due diligence the party concerned was not able to seek amendment. Since admittedly application was preferred after the trial commenced, case of respondent has to come within the mischief of the said proviso. For that, reference to the additional affidavit dated 29.07.2009 is required. There it is stated in paragraph No.2, “2. As I apprehended in the course of and towards the culmination of the trial that the suit was not being **WP(C) No.1534/2010** 6 handled properly and consistent with the huge stake involved by the counsel engaged by me I have requested the counsel to return the file. The counsel has returned the case file to me on 6.6.2007. Thereafter I have engaged another counsel to handle the case. In view of the volume of the case and the large number of documents to be studied the counsel had to take some time to study the case and file vakalth in the case.” In paragraph No.3, it is stated: “3. After studying the case my present counsel has found that there have been certain serious omissions and discrepancies in the calculation of the amounts involved in the case and the counsel advised that the plaint requires amendment. ...............” It is accordingly that new counsel was engaged and Ext.P5, application was preferred. ## 5. **Rajkumar Gurawara v. M/s.S.K.Sarwagi & Co. Pvt.Ltd.** ## **(paragraph No.5)** and **Chander Kanta Bansal v. Rajinder Singh** **Anand (paragraph No.11)** relied on by learned counsel for petitioners refer to need to comply with the proviso to Rule 17 of Order VI of the Code. It is stated that word 'diligent' means 'careful and persistent application or effort'. The decisions say that once trial has commenced except in the circumstances stated in the proviso court shall not allow amendment of pleadings. **Puran** **WP(C) No.1534/2010** 7 **Ram v. Bhaguram and another** (supra) is relied on by learned counsel for respondent to contend that since mistake in the description of property arose from the mistake in Ext.P3, agreement which is the result of a mutual mistake it was within the power of court invoking Section 26 of the Specific Relief Act to order amendment of agreement in the very same suit itself rather than driving parties to a separate suit to seek correction of agreement. This proposition is not disputed by learned counsel for petitioners also before me in all fairness. Other decision relied on by counsel for respondent is **M.P.Rajasekharan Nair v. Raju & Another** (supra). There, referring to the proviso to Order VI Rule 17 of the Code this Court held that at the time of drafting plaint due to an oversight the lawyer omitted to incorporate an important averment of readiness and willingness (to perform an agreement for sale) and that fact was revealed only later, it came within the mischief of the proviso to Order VI Rule 17 of the Code. In paragraph No.2, it is stated, “................ Once the suit has been listed for trial such an amendment could be allowed only if the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. We are of the view the plaintiff is seeking amendment of the plaint not to incorporate a fresh cause of action or to change the character of the suit. Plaint when **WP(C) No.1534/2010** 8 drafted due to an oversight by the lawyer omitted to incorporate an important averment of readiness and willingness. Fact that such an averment was not taken was noticed only when the vakalath was changed and new counsel was engaged. ................” Amendment was held to be not barred by the proviso to Rule 17 of Order VI of the Code. In **Eapen Antony v. Joseph and another** (supra) amendment was sought for after evidence of parties was over. It was stated that the mistake was noticed in the cross -examination of the party. Trial court allowed amendment which was challenged by the aggrieved party in this Court. This Court has stated various circumstances under which a party may not be aware of the mistake or inadequacy in the pleading and he is compelled to seek amendment at a later stage. In paragraph No.11 it is stated that such mistakes might occur in the pleadings due to various reasons and that such mistakes may lie undetected till it is brought to light in cross-examination of party or witness or at the time of arguments. It is stated that courts are to take a liberal view in favour of allowing amendment. 6. It is contended by counsel for petitioners that the said decisions have no application since in those cases mistakes were brought out only after commencement of trial whereas in this case in the written statement itself petitioners had pleaded discrepancies and inadequacies in the plaint which are now sought to be rectified by amendment. I must bear in mind that respondent **WP(C) No.1534/2010** 9 was being assisted by a senior lawyer of the Bar. It is quite natural that respondent left the matter to his counsel, he had not gone through the written statement and the counsel did not bring to his notice the inadequacy and discrepancy in the plaint either regarding payment of balance sale consideration or arising from the agreement itself. Those mistakes were brought to the notice of respondent in cross-examination when he was in the box. It is probably then that respondent noticed the mistakes. It is seen from Ext.P4, B diary that on many occasions counsel for respondent was not present whatever be the reason thereof including boycott of courts. It is seen that on all occasions respondent had to appear in court in person to save the case from being dismissed for default and at last stage, he requested the court for an opportunity to engage another advocate. I have referred to the additional affidavit of respondent where it is stated that only after examination of witnesses was over that counsel detected discrepancy and inadequacy in the plaint and advised to seek amendment. Bearing that in mind I am not persuaded to think that there was any lack of diligence on the part of respondent in seeking amendment. 7. Learned Sub Judge had not referred to the proviso to Order VI Rule 17 of the Code. He should have done that, no doubt. But I do not think for that reason the matter has to go back and the case should further be delayed. It is with the additional affidavit dated 29.07.2009 on record that learned Sub Judge has allowed the application for amendment. There is no **WP(C) No.1534/2010** 10 reason to think that learned Sub Judge was unaware of that additional affidavit. It is sufficient that there was sufficient material to show that inspite of exercise of due diligence respondent was not able to seek amendment before trial commenced. In the circumstances I do not consider it necessary to send the matter back to the court below for a decision regarding application of the proviso to Order VI Rule 17 of the Code. Going through the records and in particular Ext.P4, I am satisfied that respondent inspite of exercise of due diligence was not able to seek amendment of the plaint before trial commenced. I must bear in mind that there is no change of the nature or character of the suit and no additional relief also is claimed. Amendment allowed cannot cause any prejudice to the petitioners. In the circumstances I do not find reason to interfere with the order under challenge invoking supervisory power of this Court under Article 227 of the Constitution. Resultantly Writ Petition fails and, it is dismissed. **THOMAS P.JOSEPH, Judge.** **cks**