SURESH BABU V.K v. DR. SANTHOSH THOMAS

OP(C) NO. 323 OF 2023 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 OP(C) NO. 323 OF 2023** **AGAINST THE ORDER/JUDGMENT IN OS 342/2015 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM** ## **PETITIONER/S:** SURESH BABU V.K, AGED 53 YEARS S/O. LATE KRISHNAN KUTTY V.P., BUSINESS, VETTIYATIL HOUSE, FROM DOOR NO.4/279 MATTATHUR GRAMA PANCHAYATH P.O., MURIKKUNGAL, VELLIKULANGARA VILLAGE, MUKUNDAPURAM TALUK, TRISSUR , NOW RESIDING AT HOUSE NO.VI/290 MARADU MUNICIPALITY, KOPPANDISSERY ROAD, NEAR TURUTHY TEMPLE, MARADU P.O., PIN 682 304, PIN - 680699 BY ADVS. M.P.RAMNATH BEPIN PAUL S.SANDHYA SHALU VARGHESE K.S AKSHAY MOHAN UMA R.KAMATH K.J.SEBASTIAN P.RAJESH (KOTTAKKAL) M.VARGHESE VARGHESE S.DEEPAK ANTONY THARIAN ## **RESPONDENT/S:** DR. SANTHOSH THOMAS, AGED 55 YEARS S/O. O.J.THOMAS, 31/1028M, OLASA DALE, FRIENDS AVENUE, VYTTILA, KOCHI, PIN - 682019 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 323 OF 2023 2 ## **JUDGMENT** Aggrieved by Ext.P8 order passed in IA No.6107/2018 and Ext.P11 order passed in RP No.36/2022 in OS No.342/2015 by the Court of the II[nd] Additional Munsiff, Ernakulam, the defendant in the suit has filed the original petition. The respondent is the plaintiff. 2. The background facts, leading to the impugned orders, relevant for the determination of the original petition are: - (i) The respondent has instituted Ext.P1 plaint against the petitioner for a decree of prohibitory injunction. The suit is resisted by the petitioner through Ext.P2 written statement. - (ii) At the instance of the respondent, an Advocate Commissioner has filed Ext.P3 report on 28.05.2015. The petitioner has filed Ext.P4 OP(C) NO. 323 OF 2023 3 objection to the report. (iii) Long thereafter, on 05.09.2018 (that is almost three years and six months after the filing of Ext.P3 report), the respondent filed I.A.No.6107/2018 (Ext.P5) seeking leave to amend the plaint, to incorporate an additional relief for a decree of mandatory injunction to remove the structures seen in plaint 'B' schedule property. The application was opposed by the petitioner through Ext.P6 counter affidavit. - (iv) Without hearing both sides and overlooking the contentions in Ext.P6 counter affidavit, the court below allowed Ext.P5 application. Immediately, the petitioner filed IA No.1/2020, to review the order that was passed, which was allowed by Ext.P7 order. - (v) Yet, the court below, by the impugned Ext.P8 order, has allowed Ext.P5 application. OP(C) NO. 323 OF 2023 4 - (vi) The petitioner filed RP No.36/2022 to review Ext.P8 order. The application was opposed by the respondent through Ext.P10 counter affidavit. - (vii) The court below, by the impugned Ext.P11 order has partly allowed Ext.P9 review petition. - (viii) Exts.P8 and P11 orders are manifestly wrong and erroneous. Hence, the original petition. 3. Heard; Sri.M.P.Ramnath, the learned Counsel appearing for the petitioner and Sri.A.T.Anilkumar, the learned Counsel appearing for the respondent. 4. The question is, whether there is any illegality in Exts.P8 and P11 orders. 5. Ext.P1 plaint was instituted on 06.03.2015 for a permanent prohibitory injunction, to restrain the petitioner and his men from trespassing into plaint 'A' and 'B' schedule properties. 6. The respondent's case in Ext.P1 plaint is that he had purchased 250/10,000 undivided share in 8.253 OP(C) NO. 323 OF 2023 5 cents of land in Poonithura Village with the apartment bearing No.29/1348-A1A of Kochi Corporation and a covered car parking by way of a registered sale deed No.2261/03 of the Maradu SRO. The building complex consists of a basement floor, ground floor and four other floors. The basement floor has seven car parking slots. As per respondent's knowledge, the petitioner has purchased six of the seven parking spaces. The petitioner is conducting two mobile phone shops on the ground floor and first floor of the building complex. The petitioner, with an intention to take over the building complex and its management, is indulging in foul play. On 03.03.2015, the respondent received information that the petitioner in negation of the respondent's civil rights in plaint 'A' and 'B' schedule properties was attempting to enclose the plaint 'B' schedule property with his car parking spaces so as to get more space in the basement. With the above ulterior motive, the petitioner fitted rolling shutters on OP(C) NO. 323 OF 2023 6 the basement floor to restrict the entry of others, for which the petitioner has no right. 7. The petitioner has denied the allegations in the plaint through Ext.P2 written statement. 8. At the instance of the respondent, Ext.P3 commission report was filed. 9. In Ext.P3 report, the Advocate Commissioner has reported that he has seen a mobile shop functioning on the southern side of the basement floor, but could not find any separation between the shoproom and car parking area. 10. On 05.09.2018, the respondent filed Ext.P5 application seeking leave to amend the plaint and to incorporate the following reliefs: “1) In para no.4, after the 3[rd] sentence following may be added: “When the advocate commissioner inspected the property it is seen that on the southern side of basement floor where the Plaint B schedule property situates, defendant has made certain temporary structures by enclosing the B schedule property. The said construction in the B schedule OP(C) NO. 323 OF 2023 7 property is purely illegal. The defendant has no right to make any construction in the B schedule property. Therefore the structures constructed by the defendant in the basement floor by enclosing the B schedule property is to be removed. Hence the plaintiff is also seeking a relief for a mandatory injunction directing the defendant to remove the illegal construction”. 2) In prayer portion after the prayer A, the prayer AA may be added. AA] Pass a decree of mandatory injunction directing the defendant to remove the illegal construction made by him in the B schedule property and in the case of disobeyance, an amen may be deputed to remove the said structures at the cost of defendant. 3) In the valuation portion after valuation for releif A and in court free portion following may be added. Valuation for relief AA :Rs.1000/- Fixed Court fee payable under section 27(c) of the C.F&SC Act :Rs.40/-” 11. The application was resisted by the petitioner through Ext.P6 counter affidavit. 12. The court below had initially allowed Ext.P5 application granting leave to amend the plaint. 13. Subsequently, at the instance of the petitioner, OP(C) NO. 323 OF 2023 8 as per Ext.P9 application, the court below modified Ext.P8 order and passed Ext.P11 order, granting leave to the respondent to amend the plaint, but with a rider that the amendment would relate back to the date of Ext.P8 order and not to the date of the plaint. 14. The learned Counsel appearing for the petitioner placing reliance on the decision of this Court in **Abraham vs. Mathai and Ors.** [2021 (1) KHC 441] argued that when application seeking leave to amend the pleadings to incorporate an apparently time barred relief, the application is only liable to be dismissed. 15. On the contrary, the learned Counsel appearing for the respondent submitted that the question whether the relief sought to be incorporated is time barred or not is a mixed question of law and fact, which cannot be decided on affidavits. Moreover, no prejudice will be caused to the petitioner in the amendment being allowed because the court below has specifically safe guarded the interest of the petitioner OP(C) NO. 323 OF 2023 9 by holding that the amendment would not relate back to the date of the plaint. Furthermore, in view of the specific allegations in Ext.P1 plaint, the respondent should be granted an opportunity to substantiate his contentions in the suit with reference to the commission report and his deed of conveyance, failing which the respondent would be put to severe prejudice and hardship. Therefore, the original petition is to be dismissed. 16. As already discussed, the respondent's case in Ext.P1 plaint is that there are seven car parking spaces on the basement floor, out of which six car parkings have been purchased by the petitioner and one by the respondent. It was when the petitioner was attempting to enclose the respondent's car parking area that the suit was filed. 17. On an analysis of Ext.P3 commission report, it cannot be concluded that the Advocate Commissioner has identified plaint 'B' schedule property. The fact OP(C) NO. 323 OF 2023 10 remains that a car parking space has been conveyed to the respondent by the above mentioned sale deed. 18. The court below has rightly concluded that whether the relief of mandatory injunction is time barred or not is a matter of evidence. 19. More over, now in the light of the directions in Ext.P11 order, that the amendment will only relate back to the date of Ext.P8 order and not from the date of plaint, I do not find any prejudice being caused to the petitioner. 20. After bestowing my anxious consideration to case on hand, I completely concur with the view of the court below that the application for amendment cannot be rejected at the threshold on the ground of limitation. 21. It is trite; the exercise of the power of superintendence of this Court under Article 227 of the Constitution of India is to keep the courts of the District Judicature within their bounds of authority and OP(C) NO. 323 OF 2023 11 to see that they do the duty as expected of them. The High Court is not vested with any unlimited prerogative to correct all decisions made within the limits of the jurisdiction of the subordinate courts. The exercise of this power and interfering with the orders of the courts is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also nigh settled that while acting under this Article, the High Court is not acting as an appellate court to substitute its judgment in place of the subordinate courts. On an overall analysis of the facts, the specific safeguards made by the court below in Ext.P11 order and the law laid down by the Honourable Supreme Court in **Life Insurance Corporation of India vs. Sanjiv Builders Pvt Ltd. and another [2022 SCC Online 1128],** that applications for amendment have OP(C) NO. 323 OF 2023 12 to be liberally considered, I hold that there is no error in Ext.P11 order warranting interference by this Court under Article 227 of the Constitution of India. Nonetheless, the petitioner would be at liberty to file his additional written statement to the amended plaint and the court below shall consider and dispose of the suit in accordance with law. With the above observations the original petition is dismissed. **Sd/-** **C.S.DIAS JUDGE** rkc/15.02.23 OP(C) NO. 323 OF 2023 13 ## **APPENDIX OF OP(C) 323/2023** PETITIONER EXHIBITS |Exhibit P1|TRUE PHOTO COPY OF THE PLAINT IN OS| |---|---| ||NO.342/2015 DATED 06.05.2015 BEFORE THE| ||HON'BLE MUNSIFF'S COURT, EMAKULAM| |Exhibit P2|TRUE PHOTO COPY OF THE WRITTEN| ||STATEMENT FILED BY THE PETITIONER| ||HEREIN AS DEFENDANT IN O.S. NO.342/2013| ||DATED 27.03.2016 BEFORE MUNSIFF'S| ||COURT, EMAKULAM| |Exhibit P3|TRUE PHOTO COPY OF THE ADVOCATE| ||COMMISSIONER'S REPORT DT 28.05.2015 IN| ||IA NO.2255/2015 IN OS NO.342/2015| ||BEFORE THE HON'BLE MUNSIFF'S COURT,| ||ERNAKULAM.| |Exhibit P4|TRUE PHOTO COPY OF THE OBJECTION DATED| ||04.09.2018 FILED BY THE PETITIONER| ||HEREIN AS DEFENDANT, TO THE ADVOCATE| ||COMMISSIONER'S EXT P3 REPORT| |Exhibit P5|TRUE PHOTO COPY OF THE PLAINT AMENDMENT| ||APPLICATION IA NO.6107A2018 IN OS| ||NO.342/2015 DATED 05.09.2018 BEFORE THE| ||HON'BLE MUNSIFF'S COURT, EMAKULAM,| ||FILED ON 05.09.2018 BY RESPONDENT| ||HEREIN AS PETITIONER| |Exhibit P6|TRUE PHOTO COPY OF THE COUNTER| ||AFFIDAVIT<br>DT<br>04.10.2018<br>IN<br>IA| ||NO.6107/2018 IN OS NO.342/2015 OF THE| ||HON'BLE MUNSIFF'S COURT, ERNAKULAM AS| ||FILED BY THE PETITIONER HEREIN AS| ||DEFENDANT| |Exhibit P7|TRUE PHOTO COPY OF THE ORDER DT| ||04.03.2022 IN LA.NO.1/2020 (REVIEW| ||PETITION) IN IA NO.6107/2018 AND IA| ||NO.8671/2018| |Exhibit P8|TRUE PHOTO COPY OF THE ORDER DT| OP(C) NO. 323 OF 2023 14 23.07.2022 IN IA NO.6107/2018 IN O.S.NO.342/2015 Exhibit P9 TRUE PHOTO COPY OF THE REVIEW PETITION R.P.NO.36/2022 IN IA NO.6107/2018 IN OS NO.342/2015 DATED 18.09.2022 BEFORE HON'BLE MUNSIFF'S COURT, ERNAKULAM Exhibit P10 TRUE PHOTO COPY OF THE CONSOLIDATED COUNTER AFFIDAVIT DATED 13.10.2022 FILED BY RESPONDENT HEREIN TO IA NO.1/2022 AND RP NO.36/2022 Exhibit P11 TRUE PHOTO COPY OF THE ORDER DT 29.11.2022 IN REVIEW PETITION NO.36/2022 IN IA NO.6107/2018 IN OS NO.342/2015