Thykoodam Edavaka Christeeya Sangam v. St Raphael's Church, Thykoodam, Vyttila, and Kerala State Electricity Board Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 6[TH] DAY OF DECEMBER 2022 / 15TH AGRAHAYANA, 1944 OP(C) NO. 2366 OF 2022 ``` ``` AGAINST THE ORDER DATED 11.10.2022 IN I.A.NO.03/2022 IN O.S.NO.1356/2019 OF I ADDITIONAL MUNSIFF COURT, ERNAKULAM ``` ## **`PETITIONER/PETITIONER IN I.A.NO.03/2022/PLAINTIFF:`** ``` THYKOODAM EDAVAKA CHRISTEEYA SANGAM HAVING ITS OFFICE AT ROOM NO 51/533, ST RAPHAEL'S CHURCH COMPLEX, THYKOODAM, VYTTILA, PIN 682 019 REPRESENTED BY IT SECRETARY, K R JOSEPH, AGED 71 YEARS, S/O RAPHAEL ``` ``` BY ADVS.SRI.LAL K.JOSEPH SRI.P.MURALEEDHARAN (THURAVOOR) SRI.T.A.LUXY SRI.SURESH SUKUMAR SRI.ANZIL SALIM SRI.ADITHYA S. PUTHEZHATH SRI.AKASH GEORGE SRI.MUHAMMED YAHIYA ``` ## **`RESPONDENTS/RESPONDENTS IN I.A.NO.03/2022/DEFENDANTS:`** - `1 ST RAPHAEL'S CHURCH, THYKOODAM, VYTTILA, PIN 682 019. REPRESENTED BY ITS PARISH PRIEST REV.FR JHONSON D' KUNHA, PIN - 682019` - `2 KERALA STATE ELECTRICITY BOARD LIMITED OFFICE OF ELECTRICAL SECTION OFFICE, POWER HOUSE, VYTTILA, PIN 682 019` ``` REPRESENTED BY ITS ASST. ENGINEER. ``` ## **`THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2022,`** ## **`THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** ``` O.P(C). No.2366 of 2022 ``` ``` 2 ``` ## JUDGMENT Dated this the 6[th] day of December, 2022 This Original Petition is filed under Article 227 of the Constitution of India. The original petitioner is none other than the petitioner in I.A.No.03/2022 where the impugned order was passed and plaintiff in O.S.No.1356/2019 where the above I.A was filed. The respondents are the respondents in the I.A referred to above and the defendants in the above referred suit. True copies of the plaint in the above suit, I.A.No.7632/2019 seeking interim prohibitory injunction, commission report filed in I.A.No.7633/2019, written statement filed in the Suit, I.A.No.9146/2019, order passed by the court below on 09.11.2021 in I.A.No.9146/2019, I.A.No.3/2022 filed by the petitioner, counter filed by the respondent and order passed in I.A.No.3/2022 produced alongwith the Original Petition on hand are Exts.P1 to P9. 2. Following are the reliefs sought in Ext.P1: “a. Pass a Permanent Prohibitory Injunction restraining the 1[st] defendant, its men and agent from forcefully evicting the plaintiff ``` O.P(C). No.2366 of 2022 ``` ``` 3 ``` from the plaint schedule property without resorting to any due process of law, b. Pass a Permanent Prohibitory Injunction restraining the 1[st] defendants, their men and agent from committing any mischief, trespass or any other illegal acts detrimental to the interest of the plaintiff in occupying and peacefully enjoying the plaint schedule property. c. Pass a judgment and decree by way of Mandatory Injunction directing the 2[nd] defendant to reinstate the electricity connection with Consumer No.1155560000939 in the Plaint Scheduled property. d. Such other orders which this Hon’ble Court deems fit and proper in the interest of justice.” The cause of action was stated in Ext.P1 to have originated on March 2019, when the 1[st] respondent proclaimed that he would demolish the entire school building including the plaint schedule building and on 09.10.2019 when the office bearers of the 1[st] respondent including the Vicar threatened the office bearers of the petitioner that after demolition of the ``` O.P(C). No.2366 of 2022 ``` ``` 4 ``` plaint schedule property and the school building, some more economically beneficial building would be constructed in it’s place and when surrender of the vacant possession of the plaint schedule building was demanded and on 19/10/2019 when the electricity connection to the plaint schedule building was disconnected and refused to restore it. 3. I.A.No.7632/2019 was filed by the plaintiff in the Original Suit, seeking to restrain the respondents, their men and agents from forcefully evicting the petitioner from the plaint schedule property without resorting to any due process of law and to restrain them from committing any mischief, trespass or any other illegal acts detrimental to the interest of the petitioner in occupying and peacefully enjoying the plaint schedule property and to restrain the 1[st] respondent, his men and agents from propagating unwarranted statements against the interest of the petitioner and to restrain the 2[nd] respondent from dismantling the electricity connection as well as the meters and the devices erected in the injunction schedule. 4. 1[st] respondent took initiatives to forcefully evict the petitioner. Exts.P1 and P2 were moved by him. 1[st] ``` O.P(C). No.2366 of 2022 ``` ``` 5 ``` respondent who filed caveat entered appearance before the court through his counsel and undertaken that he will not demolish the plaint schedule property. The court did not record it, but, on the basis of the oral undertaking made by the 1[st] respondent, instructed the Advocate Commissioner appointed by it in I.A.No.7633/2019 to inspect the property on the day itself and to report the matters on the succeeding day. 5. As per the averments raised, the Advocate Commissioner after reaching the spot had instructed the henchmen of the 1[st] respondent not to cause any damage to the plaint schedule property. But, the henchmen of the 1[st] respondent in the presence of the Advocate Commissioner pulled down the plaint schedule property using a JCB and on apprehension that their life would be endangered by their acts, the Advocate Commissioner and the counsel for the petitioner rushed away from the plaint schedule property. 6. The Advocate Commissioner reported the aforesaid aspects before the court below, true copy of which is Ext.P3 appended to the Original Petition on hand. The 1[st] respondent ``` O.P(C). No.2366 of 2022 ``` ``` 6 ``` had also admitted the factum in the written statement filed on 25.10.2019 in the Original Suit pending, true copy of which is Ext.P4. Thereupon I.A. No. 9146/2019 was filed by the petitioner in the Suit with a prayer to restore the status quo as on date of filing of the O.S. 7. It was alleged that during the pendency of the Suit that the plaint schedule property has been demolished by the henchmen of the 1[st] respondent and thus re-entry of the petitioner to the property has been prevented. In that context the petitioner had filed I.A. No.3/2022 seeking to amend the pleadings already there in the plaint, incorporate additional pleadings based on the change in the circumstances occurred and also to mould the reliefs accordingly. A relief of mandatory injunction for undoing the actions performed by the 1[st] respondent and his henchmen was also sought in the application, true copy of which is Ext.P7 appended to the petition on hand. True copy of the counter filed by the respondent in the Original Petition is also produced as Ext.P8. 8. The court below dismissed Ext.P7 by Ext.P9 order. The reason for dismissal according to the court below was ``` O.P(C). No.2366 of 2022 ``` ``` 7 ``` change in the character of the Suit as a whole liable to be brought in by the amendment proposed. As per the pleadings now sought to be incorporated, the plaint schedule building is completely destroyed and the relief sought in the context is to undo the activities alleged as preformed by the henchmen of the 1[st] respondent by reconstructing the same. 9. Undoubtedly the amendment if allowed has the impact of changing the entire nature of the Suit pending consideration of the court below. 10. Dictums of the High Court of Jammu and Kashmir in Muhd. Sultan Wani v. Qasim Ali and others [AIR 1977 J&K 21] and the Supreme Court of India in Life Insurance Corporation of India v. San jeev Builders Pvt. Ltd and another [2022 SCC Online SC 1128] have been relied on in the case on hand by the Original Petitioner. 11. In Life Insurance Corpn. Supra, the Apex Court summed up its final conlcusions on amendment envisaged under Rule 17 of Order VI of the Code of Civil Procedure as follows : “(i) Order II Rule 2 CPC operates as a bar against a ``` O.P(C). No.2366 of 2022 ``` ``` 8 ``` subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and - (ii) to avoid multiplicity of proceedings, provided - (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). - (iv) A prayer for amendment is generally required to be allowed unless - (i) by the amendment, a time barred claim is ``` O.P(C). No.2366 of 2022 ``` ``` 9 ``` sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pinpointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, ``` O.P(C). No.2366 of 2022 ``` ``` 10 ``` foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. ” 12. In the case referred to supra, Suit was instituted seeking for specific performance of an agreement for sale entered in the year 1979. As an alternative relief, damages was also prayed for by the plaintiff. Plaintiff moved the chamber summons No.854 of 2017, inter alia, seeking for enhancement of the amount claimed by him towards damages on various grounds elaborated in the affidavit filed in support of the chamber summons. A Single Bench of the High Court ``` O.P(C). No.2366 of 2022 ``` ``` 11 ``` allowed the chamber summons keeping the issue of limitation kept open for consideration and permitting the defendant to file additional written statement. The defendant who was the appellant before the High Court filed appeal before a Division Bench of the High Court which came to be dismissed. The order of dismissal was challenged before the Apex Court and was dismissed. The dictum of the Apex Court contained in paragraph 58 of the judgment supra is extracted hereunder : “58. Section 22 has a non-obstante provision which overrides the CPC. A plaintiff who claims specific performance of a contract for the transfer of immovable property, may in an appropriate case ask for possession, partition and separate possession of the property, in addition to specific performance. The plaintiff may also claim any other relief including the refund of earnest money or deposit paid, in case the claim for specific performance is refused. Corresponding to the provisions of sub-section (5) of Section 21 , sub-section (2) Section 22 stipulates that such relief cannot be granted by the court unless it has been specifically claimed. However, the proviso requires that the court shall at any stage of the proceedings allow the plaintiff to amend the plaint to claim such relief where it has not been originally claimed on such terms which may appear just.” ``` O.P(C). No.2366 of 2022 ``` ``` 12 ``` 13. The above dictum was laid in the context of a Suit where a decree of specific performance was sought as a relief. Section 22 of the Special Relief Act, itself makes provision for additional reliefs that count be sought in the suit seeking specific performance. Sub-Section (2) of Section 22 of the Act itself stipulates that those reliefs can be granted without a specific claim for those being raised. The proviso to the Section directs the court wherein the suit for a decree of specific performance has been filed to permit the amendment of the plaint to incorporate the claim for such reliefs where those have not been originally claimed, on such terms as it may appear to it just. The context referred to above is totally different from the one on hand and therefore cannot be taken to have any application in the case on hand. 14. In Mohd Sultan Wani supra relied on by the original petitioner, amendment of the plaint was not sought by the plaintiff who was the appellant before the court. The Original Suit was for permanent prohibitory injunction against the defendants. The plaintiff claimed to be a tenant of a shop owned by the 1[st] defendant. Defendants 1 and 2 have been ``` O.P(C). No.2366 of 2022 ``` ``` 13 ``` interfering with the possession of the plaintiff and have also been indulging in various acts of malfeasance to pressurise and pursuade the plaintiff to vacate the shop. Thus a decree for permanent prohibitory injunction was sought against the defendants and also for a mandatory injunction for compelling the defendants to reconstruct a demolished wall. The defendants in the written statement filed had denied the claim of the plaintiffs and pleaded that the plaintiff had already surrendered vacant possession of the shop on his own accord. An interim injunction was passed by the court in the interlocutory application filed by the plaintiff and thereby the defendants were temporarily restrained from interfering with possession of the property by the plaintiff. During progress of the trial, the plaintiff moved application for contempt in the trial court alleging that the defendant forcibly turned out the plaintiff from the shop and thereby the interim order of the court was flouted. The plaintiff did not seek for amendment of the plaint in the suit filed by him based on subsequent events alleged by him in the contempt proceedings. The trial court found on conclusion of the trial in the suit that the contention ``` O.P(C). No.2366 of 2022 ``` ``` 14 ``` of the defendant on vacant surrender of the shop room by the plaintiff was not established. 15. It also found that the plaintiff was in possession of the property at the time of institution of the suit, and that his possession was disturbed during the pendency of the suit, while the interim order of injunction was in force. The Trial Court instead of passing a decree in terms of the reliefs sought in the suit, passed a decree for possession of the shop in favour of the plaintiff. The appellate court found that the grant of relief was beyond any claim for the relief being raised in the suit and therefore do not have the support of relevant pleadings in the plaint. It also found that the trial court has erred in granting a relief which has not been asked for by the plaintiff. An amendment of the plaint in the changed circumstances as was also not sought by the plaintiff. The appeal was allowed by the court for the reasons and the judgment and decree of the Trial Court was set aside. The aggrieved plaintiff approached the High Court of Jammu and Kashmir in revision. The court held: ``` O.P(C). No.2366 of 2022 ``` ``` 15 ``` “It is true that the court can take notice of subsequent events but in that case the plaintiff must invite attention of the court to the altered circumstances and ask for appropriate relief. Where in a suit for declaration in which the plaintiff claims a right to a legal character in respect of certain property and in the course of litigation he is dispossessed, the court cannot, if the right claimed is adjusted in his favour, ipso facto on its own grant relief of possession in his favour without asking him to amend the plaint and add consequential relief in the plaint as the granting of such a relief would be inconsistent with the pleadings of the parties and would also be inconsistent with the averments as disclosed in the pleadings of parties, In the same way where a plaintiff in a suit for permanent injunction is dispossessed by the defendant during the pendency of the suit, the court can no doubt take notice of this subsequent event but it has no power under Order 7 rule 7 to grant relief of possession to the plaintiff without notice to the defendant and without asking the plaintiff to amend the plaint. It is to meet such situations that Order 6 Rule 17 has been engrafted in the Code of Civil Procedure to enable a party to seek amendment of its pleadings. That Rule does empower the court to allow either party to alter or amend its plaint or written statement in such manner and in such terms as may be just and all such amendments can be made as may be necessary for the purpose of determining the real questions in controversy between the parties. This can be done at any stage of the proceedings. In my opinion therefore the proper course ``` O.P(C). No.2366 of 2022 ``` ``` 16 ``` for the plaintiff was to apply for amendment and to seek the consequential relief. The Court could thereby raise an appropriate issue in the case and go into that question which was vital for the decision of the case.” 16. High Court of Jammu and Kashmir accordingly found the trial court unjustified in passing a decree for possession in the case, without the party opting to incorporate the pleas on changes in circumstances by way of amendment and mould the reliefs accordingly. It is true from the dictum that necessary amendment can be brought in the plaint by way of amendment. 17. Additional reliefs can also be brought into the plaint by way of amendment. But, as concluded by the Apex Court in Mohd Sultan Wani supra the courts dealing with an application seeking amendment must see to disallow the prayer for amendment, if it has the impact of changing the very nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case originally set up in the plaint. The amendment is required to be allowed only when it was related to the relief already sought in the plaint and is predicated on facts which are already pleaded in the plaint. ``` O.P(C). No.2366 of 2022 ``` ``` 17 ``` 18. In the case on hand, amendments sought are of the nature of changing the character of the suit already pending consideration of the court. Except the parties, the entire pleadings in the plaint including the cause of action and the reliefs are sought to be amended. Moreover a prayer for restoration of status quo ante institution of suit is sought which a court of law is not even empowered to grant. The plaint schedule property is pleaded in the application seeking amendment as completely destroyed and therefore, it can be taken to have been non-existent. The reliefs already raised in the plaint being permanent prohibitory injunction restraining the defendants, his henchmen and agents from committing any mischief, trespass or any other illegal acts detrimental to the interest of the plaintiff in occupying and peacefully enjoying the plaint schedule property, evicting the plaintiff from the plaint schedule property, from committing acts of waste in the plaint schedule property and for a mandatory injunction directing 2[nd] respondent to reinstate the electricity connection in the plaint schedule property, which has been destroyed completely, the pending Suit is only liable to be ``` O.P(C). No.2366 of 2022 ``` ``` 18 ``` dismissed as infructuous. The court below has already stated in the order passed in I.A No.9146 of 2019 that the reliefs sought in the plaint has become infructuous. A suit in which the reliefs already sought have become infructuous in view of changes in circumstances, cannot be made live by incorporating new pleadings, new cause of actions and new reliefs. Plaintiff can opt to file a fresh Suit seeking for the reliefs now sought to be incorporated by way of amendment of the plaint, subject to the limitation period. The application seeking amendment has been properly disallowed by the court below. The order impugned is maintainable in all respects as it does not suffer from the vice of illegality, impropriety and infirmity as contended by the Original Petitioner. Original Petition (C) stands dismissed for the reasons and the impugned order stands maintained. MARY JOSEPH MJL ``` O.P(C). No.2366 of 2022 ``` ``` 19 ``` ## **`A PPENDIX OF OP(C) 2366/2022`** ``` PETITIONER’S EXHIBITS: ``` - `EXHIBIT P1 TRUE COPY OF THE PLAINT O.S.NO.1356/2019 FILED BY THE PETITIONER BEFORE THE 1ST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM ON 25/10/2019.` - `EXHIBIT P2 TRUE COPY OF THE I A NO. 7632/2019 IN O.S. 1356/2019 FOR AN INTERIM PROHIBITORY INJUNCTION FILED BY THE PETITIONER ON 25/10/2019.` - `EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT DATED OCTOBER, 2019 IN I.A. 7633/2019 IN O.S. 1356/2019 FILED BY THE ADVOCATE COMMISSIONER BEFORE THE MUNSIFF COURT, ERNAKULAM.` - `EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT DATED 14-3-2020 IN O.S. 1356/2019 FILED BY THE 1ST RESPONDENT BEFORE THE MUNSIFF COURT ERNAKULAM.` - `EXHIBIT P5 TRUE COPY OF THE I A NO. 9146/2019 IN O.S. 1356/2019 FILED BY THE PETITIONER ON 20/12/2019 BEFORE THE MUNSIFF COURT, ERNAKULAM.` - `EXHIBIT P6 TRUE COPY OF THE ORDER DATED 9/11/2021 IN EXT.P5 PASSED BY THE 1ST ADDITIONAL MUNSIFF COURT, ERNAKULAM.` - `EXHIBIT P7 TRUE COPY OF THE I A NO. 3/2022 IN O.S. 1356/19 FILED BY THE PETITIONER ON 6/1/22.` - `EXHIBIT P8 TRUE COPY OF THE COUNTER IN EXT.P7 SUBMITTED BY THE 1ST RESPONDENT ON 30/7/2022 .` - `EXHIBIT P9 TRUE COPY OF THE ORDER IN EXT.P7 DATED 11-10-2022 PASSED BY THE 1ST ADDITIONAL MUNSIFF COURT, ERNAKULAM.` ``` RESPONDENTS’ EXHIBITS: NIL ``` ``` //TRUE COPY// ``` ``` P A TO JUDGE ```