High Court of KeralaSingle Judge2022-03-31Original Petition disposed of; Ext.P6 set aside...

Syed Ahammed v. Muhammed Khan Rawther

Case / Petition Number:OP(C) No. 1472 of 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Babu
Judgment Date: 2022-03-31
Court Decision / Holding: Ext.P6 order dated 04-08-2021 is set aside. The Court below is directed to consider I.A.No.6/2020 (Ext.P4) afresh in light of Order VI Rule 17 CPC. Both sides are at liberty to file additional affidavits. The Court below shall try to dispose of I.A.No.6/2020 before the summer vacation and may seek extension of time if required. The Original Petition is disposed of as above.
Final Disposition: Original Petition disposed of; Ext.P6 set aside and matter remitted for fresh consideration of amendment in light of Order VI Rule 17 CPC.

Parties to the Case

Appellants / Petitioners

Syed Ahammed

Respondents

Muhammed Khan Rawther

Legal Representation & Advocates

Counsels for Petitioners

• P.B. Krishnan
• P.B. Subramanyan
• Sabu George
• Manu Vyasan Peter

Counsels for Respondents

• Alex.M.Scaria
• Saritha Thomas

Case Synopsis & Summary

Syed Ahammed filed OP(C) No.1472 of 2021 under Article 227 challenging Ext.P6, an order in I.A.6/2020 in O.S. 23/2017, Kattappana Subordinate Court, which allowed the defendant to amend the written statement to include a new relief—recovery of possession. The original suit is for specific performance of a contract for sale of the plaint schedule property. The plaintiff alleged that the defendant sought to introduce additional relief after the evidence had commenced. The trial court allowed the amendment to the counterclaim citing lack of prejudice to the plaintiff and to avoid multiplicity. The petitioner argued that Order VI Rule 17 CPC permits amendments but requires a reasoned finding in the proviso when amendments are sought after the trial has commenced; the amendment was filed on 12-11-2020, while the plaintiff’s proof affidavit was recorded on 12-11-2020, and the evidence of PW1 occurred on 19-11-2020, indicating that the trial had begun. The petition contends that the absence of a statutory finding renders Ext.P6 void. The respondents contend that the amendment was filed before trial, so the proviso did not require such a finding, and the court had discretion to allow amendments to determine the real questions. The High Court, after examining submissions, found that Ext.P6 was passed after trial commenced, and the lack of reasons vitiated the order; it remitted the matter to the trial court with directions to decide afresh in light of Order VI Rule 17 CPC, permitting further affidavits and extensions if necessary.

Provisions of Law Cited

Article 227 of the Constitution of IndiaOrder VI Rule 17 CPCProviso to Order VI Rule 17 CPCCode of Civil Procedure, 1908

Legal Doctrines & Maxims

Avoid multiplicity of proceedings
Due diligence (concept)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P4 (I.A.6/2020) seeking amendment to add the relief of possession was filed before trial; proviso to Order VI Rule 17 requires the court to record a finding if the amendment is after the trial has commenced, which the trial court failed to do. They argue that the absence of reasons renders Ext.P6 void and that allowing amendment at this late stage risks prejudice and multiplicity of proceedings; thus the order should be set aside and remitted for a reasoned adjudication in light of Order VI Rule 17 CPC.

Contentions of Respondents

The respondents contend Ext.P4 was filed before trial or simultaneously with the plaintiff’s proof affidavit, so no statutory finding is required; the court has discretion under Order VI Rule 17 to allow amendments to determine the real issues, and the amendment would not prejudice the plaintiff; thus the impugned order should stand. They rely on Neelakandan Nair v. Parameswara Kurup and other authorities to support that amendments can be allowed prior to or during trial depending on circumstances.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sasikala T.V and another v. C.P.Joseph	2021 (1) KHC 23	Mentioned Only	Cited to illustrate the proposition that trial commencement is tied to the filing of affidavits or examination in chief; not expressly adopted in the decision.
Neelakandan Nair v. Parameswara Kurup	2003 (2) KLT 943	Mentioned Only	Cited by the respondent to support contentions; the court does not rely on it as controlling authority in its conclusion.

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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 K. BABU** **THURSDAY, THE 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944** ## **OP(C) NO. 1472 OF 2021** **AGAINST THE ORDER IN I.A.No.6/2020 IN OS 23/2017 OF SUB** ## **COURT,KATTAPPANA** ## **PETITIONER/RESPONDENT/PLAINTIFF:** SYED AHAMMED, AGED 75 YEARS, S/O. N.K.S MUHAMMED RAWTHER, RESIDING AT NATTAMI ILLAM, OLD HOSPITAL STREET, UTHAMAPALAYAM TOWN, UTHAMAPALAYAM TALUK, THENI DISTRICT, TAMILNADU 625 533 BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE MANU VYASAN PETER ## **RESPONDENT/PETITIONER/DEFENDANT:** MUHAMMED KHAN RAWTHER, AGED 40 YEARS, RESIDING AT NATTAMI ILLAM, OLD HOSPITAL STREET, UTHAMAPALAYAM TOWN, UTHAMAPALAYAM TALUK, THENI DISTRICT, TAMILNADU 625 533 BY ADVS. ALEX.M.SCARIA SARITHA THOMAS THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) No.1472 of 2021 2 ## K.BABU, J . -------------------------------------- O.P(C) No.1472 of 2021 --------------------------------------- Dated this the 31[st] day of March, 2022 ## JUDGMENT The prayers in this Original Petition filed under Article 227 of the Constitution of India are as follows: - “(i) Set aside Ext.P6 order in exercise of the supervisory jurisdiction of this Hon'ble Court under Article 227 of the Constitution of India; - (ii) Pass an order dismissing I.A.No.6 of 2020 in O.S.No.23 of 2017 on the file of the Subordinate Judge's Court, Kattappana in exercise of the supervisory jurisdiction of this Hon'ble Court under Article 227 of the Constitution of India; - (iii) Grant the petitioner such other appropriate reliefs that this Hon'ble Court may deem fit and proper on the facts and in the circumstances of the case.” ## 2. The petitioner is the plaintiff in O.S.No.23/2017 on the file of the Subordinate Judge's Court, Kattappana. The respondent is the defendant in the suit. ## 3. The Original Suit was filed for specific performance of a contract for sale in respect of the plaint schedule property. The defendant resisted the suit, filing a written statement along with a counterclaim. O.P(C) No.1472 of 2021 3 4. During the course of proceedings, the defendant filed application seeking amendments in the counterclaim (Ext.P4). The Court below allowed that application as per Ext.P6 order. ## 5. This order is impugned in this Original Petition. 6. The order passed by the Court below is extracted below: “This is an application filed by the defendant in the suit to amend written statement to claim additional relief of recovery of possession. 2. Heard both sides. 3. The point that arise for determination is:- 1) Whether the application can be allowed? 4. Answer:- The written statement is filed with counter claim. The defendant is claiming additional reliefs and recovery of possession against the plaintiff. The merits of the objection advanced by the plaintiff against the relief of recovery of possession can be considered at the time of trial. The plaintiff also has the right to file additional pleadings against the new relief claimed. So no prejudice will be caused to the plaintiff by allowing this application. The dispute is between the parties to the suit and in order to avoid multiplicity of proceedings, this application to amend the written statement to add the relief of recovery of possession is allowed. No costs. Carry out the amendments within 10 days.” 7. The learned counsel for the petitioner contended that Ext.P4 amendment application was filed prior to or simultaneously with the proof affidavit filed by the plaintiff. Relying on the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') the learned counsel submitted that the Court O.P(C) No.1472 of 2021 4 below ought to have recorded a finding as to whether the respondent/defendant has satisfied the requirement as contained in the proviso. 8. Per contra, the learned counsel for the respondent/defendant contended that Ext.P4 application was filed prior to the commencement of the trial, and therefore, the Court below was not duty bound to record any reason as mandated in the proviso. ## 9. Amendment of pleadings is dealt with in Order VI Rule 17 of CPC, which reads thus: “17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” ## 10. As per the proviso to Order VI Rule 17, the Court, while allowing an application seeking amendment after the trial has commenced, has to enter into a finding that, in spite of due diligence, the applicant could not have raised the matter before the O.P(C) No.1472 of 2021 5 commencement of the trial. Exhibit P4 application was filed on 12.11.2020. Exhibit R1(f) would show that the proof affidavit of the plaintiff was presented before the Court on 12.11.2020. In the counter affidavit the respondent admitted that Ext.P4 was filed prior to or simultaneous to the filing of the proof affidavit in the case. 11. Relying on Sasikala T.V and another v. C.P.Joseph [2021 (1) KHC 23], the learned counsel for the petitioner submitted that trial in a suit commences on the date on which affidavit in lieu of examination in chief of a party or his witness is filed for the purpose of recording evidence. 12. The learned counsel for the respondent relied on Neelakandan Nair v. Parameswara Kurup [2003 (2) KLT 943] in support of his contentions. 13. Exhibit R1(g) shows that the plaintiff was examined on 19.11.2020. Ext.P6 order granting amendments in the counterclaim was passed on 04.08.2021. Therefore, it is evident that the application for amendment was allowed after the trial has commenced. The Court below was statutorily bound to record O.P(C) No.1472 of 2021 6 reasons as provided in the proviso to Order VI Rule 17 CPC. This requirement has not been satisfied in the impugned order. The order, therefore, is liable to be set aside. 14. Having regard to the rival contentions and the stake involved, this Court is of the view that the matter is to be remitted to the Trial Court for fresh consideration. 15. Resultantly, Ext.P6 order dated 04.08.2021 is set aside. The Court below is directed to consider I.A.No.6/2020 (Ext.P4) afresh in the light of the principles contained in Order VI Rule 17 CPC. Both sides are at liberty to file additional affidavits in respect of their rival contentions. The Court below shall try to dispose of I.A.No.6/2020 before the Court closes for summer vacation. The Court below is at liberty to seek extension of time, if required. The Original Petition is disposed of as above. Sd/K.BABU, JUDGE KAS O.P(C) No.1472 of 2021 7 ## **APPENDIX OF OP(C) 1472/2021** ## PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE AMENDED PLAINT DATED 15-06-2017 IN O.S NO. 23 OF 2017 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KATTAPPANA Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT DATED 17-1-2018 FILED BY THE DEFENDANT IN O.S NO. 23 OF 2017 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KATTAPPANA Exhibit P3 A TRUE COPY OF THE REPLICATION DATED 14-3-2018 IN O.S NO.23 OF 2017 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KATTAPPANA Exhibit P4 A TRUE COPY OF I.A NO. 6 OF 2020 IN O.S NO. 23 OF 2017 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KATTAPPANA, DATED 11-11-2020 Exhibit P5 A TRUE COPY OF THE OBJECTION, DATED 1911-2020 IN I.A NO. 6 OF 2020 IN OS NO. 23 OF 2017 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KATTAPPANA. Exhibit P6 A TRUE COPY OF THE ORDER DATED 04-082021 IN I.A NO. 6 OF 2020 IN OS NO. 23 OF 2017 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, KATTAPPANA. ## RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF THE PRINT OUT OF THE STATUS FROM THE E-COURT SITE. Exhibit R1(b) TRUE COPY OF THE PRINTOUT OF EACH OF ITS PROCEEDINGS IN RESPECT OF THE CASES WITH EFFECT FROM ORIGINAL DATED 09.08.2017 UP TO 05.10.2021 IN A SET. Exhibit R1(C) TRUE COPY OF THE I.A.No.3/2020 DATED 30.09.2020 BEFORE THE SUB COURT, KATTAPPANA Exhibit R1(d) TRUE COPY OF THE I.A.No.4/2020 FILED ON 20.10.2020 BEFORE THE HONOURABLE SUB COURT, KATTAPPANA O.P(C) No.1472 of 2021 8 Exhibit R1(e) TRUE COPY OF THE I.A.No.5/2020 FILED ON 23.10.2020 BEFORE THE HONOURABLE SUB COURT, KATTAPPANA Exhibit R1(f) TRUE COPY OF THE CERTIFIED COPY OF THE PROOF AFFIDAVIT DATED 12.11.2020 WITH COURT ENDORSEMENTS FILED BY THE PETITIONER Exhibit R1(g) TRUE COPY OF THE CERTIFIED COPY OF RECORDING OF EVIDENCE OF PW1 IN EXT.P1 SUIT ON 19.11.2010 BASED ON EXT.R1(f)