Thiruvananthapuram Corporation v. Sree Irumkulangara Durga Bhagavathy Kshethram Trust

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932** **OP(C).No. 1229 of 2010(O)** **------------------------------------** **AGAINST THE ORDER IN IA 7886/2010 IN OS.864/2009 of I ADDL.M.C.,TRIVANDRUM** **....................** **PETITIONER (S):** **------------------------------** **THE THIRUVANANTHAPURAM CORPORATION, REPRESENTED BY ITS SECRETARY, CORPORATION BUILDINGS, VIKHAS BHAVAN, M.G.ROAD, THIRUVANANTHAPURAM-33.** **BY ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE SRI.P.K.MANOJKUMAR** **RESPONDENT(S):** **--------------------------** **1. "SREE IRUMKULANGARA DURGA BHAGAVATHY KSHETHRAM TRUST",THOTTAM,MANACAUD, THIRUVANANTHAPURAM,REP.BY ITS SECRETARY, SHRI.ASHIJITHKUMAR G.,AGED 48 YEARS, S/O.LATE GOPAKUMAR,R/AT "MEERA VILAS", VALLAKKADAVU P.O.,THIRUVANANTHAPURAM-695008.** **2. "SREE IRUMKULANGARA DURGA BHAGAVATHY KSHETRAM", REPRESENTED BY ITS SECRETARY,THOTTAM, MANACAUD, TRIVANDRUM-695009.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **THOMAS P. JOSEPH, J. ----------------------------------------O.P(Civil). NO. 1229 OF 2010 ---------------------------------------Dated this the 21[st] day of December, 2010.** ## **JUDGMENT** Defendant in O.S. 864 of 2009 of the court of learned Additional Munsiff-I, Thiruvananthapuram is the petitioner challenging Ext.P5 order allowing amendment of plaint vide I.A. No.7886 of 2010. Respondent, a temple trust sued petitioner for eviction from the suit property contending that under a permission granted by it, petitioner is in occupation of the suit property. Permission was granted for the specific purpose of running a Maternity and Child Welfare Centre. But petitioner deviated from that purpose and has used the suit property for some other purpose which was not in accordance with the object of the grant of permission. Hence respondent claimed to have withdrawn the permission granted to the petitioner and filed the suit for eviction. Petitioner filed Ext.P2, written statement 2 **O.P(Civil). NO. 1229 OF 2010** denying title of respondent and contending that it has been in possession and enjoyment of the suit property for the last forty four years. It was also contended that in the circumstances, respondent is barred from claiming title over the property as per the law of limitation. With the above pleadings and issues framed thereon, parties went to trial and examination of witnesses for the respondent commenced. Cross examination of the witness was adjourned to 27.09.2010. At that stage respondent filed I.A 7886 of 2010 for amendment of plaint. By the amendment respondent wanted to state in the plaint that the suit property is Service Inam Land and that the Service Inam Land Settlement Officer has passed order in favour of respondent conferring right over the property and that order has become final. The relief portion of the plaint was to be amended to include 3 **O.P(Civil). NO. 1229 OF 2010** a prayer for declaration of title and possession of respondent over the suit property. Application was opposed by petitioner contending that if permitted, it would alter the nature and character of the suit, it is belated, application is preferred after trial has commenced and hence is hit by the proviso to Rule 17 Order VI of the Code of Civil Procedure (for short “the Code”). Learned Munsiff rejected the objection and allowed I.A No. 7886 of 2010 by Ext.P5 order. That order is under challenge. 2. Learned Senior Advocate Sri. N.Nandakumara Menon appearing for petitioner contended that for the reasons above stated, the order impugned cannot be sustained. According to the learned Senior Advocate, amendment would completely alter the nature and character of the suit and there is no compliance with the proviso to Order 6 Rule 17 of the Code. 4 **O.P(Civil). NO. 1229 OF 2010** 3. No doubt, in the plaint as originally filed respondent did not say in what way it got title over the property. But, I must bear in mind that preceding the institution of the suit respondent had issued a notice to the petitioner demanding them to vacate the suit property but, that notice went without any response. Petitioner did not deny title of the respondent at that stage. Non mention of derivation of title in the plaint has to be understood in the above circumstances. In that situation, respondent cannot be found fault with for not stating the derivation of title in the plaint though, it would even appreciable if that was stated at the first instance itself. 4. I shall refer to the argument that amendment if permitted would alter the nature and character of the suit. Relief prayed for in the plaint is a mandatory injunction to direct petitioner to 5 **O.P(Civil). NO. 1229 OF 2010** vacate the suit property on the premise that petitioner is a licensee in occupation of the suit property and that licence has been withdrawn. By the proposed amendment there is no change brought about on that relief. It is only that in view of denial of title made by petitioner for the first time in Ext.P2, written statement respondent thought it appropriate to seek a declaration of the title and possession it claims over the suit property. That does not in my view alter the nature or character of the suit. Moreover, amendment prayed for is necessary for determining the real question in controversy between parties and avoid multiplicity of suits. The Supreme Court, in **Nichhal Bhai v. Jaswantlal, (AIR 1966 SC 997)** has held that the object of the rule for allowing amendment of plaint is to avoid multiplicity of suits. 6 **O.P(Civil). NO. 1229 OF 2010** 5. It is true that it is after the trial commenced that respondent came up with I.A No.7886 of 2010 and under the proviso to Rule 17 Order VI of the Code when the trial has commenced no amendment is to be permitted, unless the party is able to show that in spite of exercise of due diligence he was not able to seek the amendment before commencement of the trial. This Court in **Eapen Antony v. Joseph and another, (ILR 2009 (1) Kerala 712)** has referred to the various circumstances under which even a vigilant litigant may fail to seek the amendment before the trial commenced. True, that cannot be given universal application irrespective of the facts involved. In the present case I stated that the notice issued preceding institution of the suit demanding vacant possession was not replied. It is under that circumstances that respondent did not 7 **O.P(Civil). NO. 1229 OF 2010** state in the plaint how it got title over the suit property. Having regard to this aspect of the matter, I am prepared to think that notwithstanding commencement of trial, learned Munsiff was justified in allowing the respondent to amend the plaint. 6. Viewed in the above perspective, I am inclined to think that learned Munsiff has exercised the discretionary jurisdiction in the proper manner and that does not call for interference under Article 227 of Constitution of India. Petition fails. It is dismissed. ## **THOMAS P. JOSEPH, JUDGE** mns