Swapna v. Sudarsanan M.R.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 OP(C) NO. 352 OF 2023 ``` **`AGAINST THE ORDER/JUDGMENT`** in IA No.2/2022 in **`OS 1151/2013 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM`** ## **`PETITIONER/S:`** ``` SWAPNA AGED 50 YEARS W/O. UDAYAKUMAR, "UDAYA BHAVANAM', GOVINDA MUTTOM MURI, UTHUPALLY VILLAGE, KARTHIKAPILLY TALUK, ALAPUZHA DISTRICT., PIN - 690516 BY ADV M.NARENDRA KUMAR ``` ## **`RESPONDENT/S:`** ``` SUDARSHANAN.M.R. AGED 64 YEARS S/O. JANAKI AMMA.K., KAVERY HOUSE, THURUTHIKARA, PYNGARAPPILLY.P.O., MULAMTHURUTHY., PIN - 682314 BY ADVS. PINKY A.R. BENNY M.JOHN K.SURESHBABU (KOCHIN) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.352 of 2023 ## **C.S DIAS,J.** **--------------------------OP(C) No.352 of 2023** **----------------------------Dated this the 2[nd] day of March, 2023.** ## **JUDGMENT** The original petition is filed challenging Ext P1 order passed in IA No.2/2022 in OS No.1151/2013 by the Court of the Second Additional Munsiff, Ernakulam. The petitioner is the plaintiff and the respondent is the defendant in the suit. 2. The relevant background facts leading to Ext P1 order are: 2. (i). The petitioner instituted Ext P2 plaint seeking a decree of mandatory injunction to direct the defendant to remove the pillars and gate constructed across the plaint ‘B’ schedule property and to pass a decree of permanent 3 OP(C) No.352 of 2023 prohibitory injunction to restrain the respondent from interfering with the peaceful possession of the petitioner over the plaint ‘A’ and ‘B’ schedule properties. 2.(ii). The suit was resisted by the respondent. 2. (iii). Later, the petitioner filed IA No.2/2022 (Ext P3), seeking leave to amend the plaint to incorporate the prayers to declare that the petitioner has title over plaint ‘A’ schedule property and for fixation of a dividing boundary between ‘A’ and ‘C’ schedule properties. 2.(iv). The application was opposed by the respondent through Ext P4 written objection. 2.(v). The court below, by the impugned Ext P1 order, has dismissed Ext P3 application. 2.(vi). Ext P1 order is manifestly wrong and unsustainable in law. Hence the original petition. 4 OP(C) No.352 of 2023 3. Heard; Sri.M.Narendra Kumar, the learned Counsel appearing for the petitioner and Sri.Benny M.John, the learned Counsel appearing for the respondent. 4. The question is, whether there is any illegality in Ext P1 order. 5. Exhibit P2 plaint was instituted way back on 25.10.2013, seeking decrees for mandatory injunction and permanent prohibitory injunction. 6. Later, on 15.8.2022, the petitioner filed Ext P3 application, inter alia, contending that on 17.10.2013 the respondent attempted to demolish the eastern boundary of plaint ‘A’ schedule property and on the following date, the respondent dismantled the wall for the purpose of making a shed. Therefore, it was necessary to incorporate reliefs for declaration of title and fixation of boundary. 5 OP(C) No.352 of 2023 7. The respondent resisted Ext P3 application contending that the proposed amendment of the plaint would change the nature and character of the plaint. The pleadings sought to be incorporated has already been adjudicated in an earlier suit i.e., OS No.1100/2013 between the parties. The matter is now pending before this Court in RSA No.8/2020. Thus, the application may be rejected. 8. The court below, after appreciating the rival contentions, arrived at the conclusion that the averments in the plaint would establish that there is no dispute as to title and boundary, and the proposed amendment would alter the nature and character of the plaint. Consequentially, the court below dismissed the application. 9. In **Life Insurance Corporation of India vs. Sanjeev Builders (P) Ltd** [2022 SCC Online SC 1128], the Hon’ble Supreme Court has laid down elaborate guidelines 6 OP(C) No.352 of 2023 for the Courts while considering applications to amend the pleadings. It is, inter alia, held that applications seeking amendment of pleadings have to be liberally considered, unless the reliefs sought to be incorporated are hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure or are time barred. 10. Coming back to the facts of the case, the principal objection of the respondent is that the proposed amendment would change the very nature of the suit. But, the court below, in the impugned order has held that as there are no disputes pertaining to the boundaries and title, there is no necessity to allow the amendment. 11. In light of the explicit enunciation of law in **Life Insurance Corporation of India** (supra), I am of the firm view that the application for amendment, which is filed well within the stipulated time period, is to be allowed, 7 OP(C) No.352 of 2023 especially because no prejudice is likely to be caused to the respondent, who can very well file his additional written statement and refute the allegations to the amended plaint. The above course would avoid multiplicity of proceedings also. Moreover, the merits of the pleadings sought to be incorporated at the pre-amendment stage cannot be decided in an application for amendment. Ultimately, the suit will have to be decided on its merits and not on the basis of the pleadings in Ext P3 application. Thus, I hold that Ext P1 order is liable to be interfered by this Court by invoking its power of superintendence under Article 227 of the Constitution of India. Resultantly, I allow the original petition as follows: (i) Ext P1 order is set aside. ## (ii) Ext P3 application is allowed. 8 OP(C) No.352 of 2023 (iii) The petitioner shall carry out the amendment to the plaint within the prescribed statutory time period. (iv) The court below shall permit the respondent to file his additional written statement to the amended plaint within one month from the date the amendment is carried out. - (v) As the suit is of the year 2013, the court below shall consider and dispose of OS No.1151/2013, in accordance with law and as expeditiously as possible. ## **sd/-** sks/2.3.2023 **C.S.DIAS, JUDGE** 9 OP(C) No.352 of 2023 ## **`APPENDIX OF OP(C) 352/2023`** ``` PETITIONER EXHIBITS Exhibit-P1TRUE COPY OF THE ORDER DATED 12.01.2023 IN I.A. NO. 2 OF 2022 Exhibit-P2TRUE COPY OF THE PLAINT IN O.S. NO. 1151 OF 2013 IN THE COURT OF MUNSIFF, ERNAKULAM Exhibit-P3TRUE COPY OF THE APPLICATION FOR AMENDMENT I.A.NO. 2 OF 2022 Exhibit-P4TRUE COPY OF THE OBJECTION TO I.A. NO. 2/2022 FILED BY RESPONDENT Exhibit5TRUE COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENT IN O.S. NO.1151/2013 Exhibit-P6TRUE COPY OF THE ROUGH SKETCH OF THE COMMISSION REPORT Exhibit-P7TRUE COPY OF THE REPORT SUBMITTED ALONG WITH EXHIBIT - P5 Exhibit8TRUE COPY OF JUDGMENT IN O.S. NO. 1100/2013 IN ADDITIONAL MUNSIFF'S COURT, ERNAKULAM DATED 25.06.2018 Exhibit9TRUE COPY OF THE JUDGMENT DATED 31.10.2019 IN A.S. NO. 185 OF 2018 PASSED BY IIND ADDITIONAL DISTRICT JUDGE, ERNAKUKLAM Exhibit10TRUE COPY OF THE JUDGMENT IN OP(C) 513/2015 DATED 7/8/2015 ```