UCHUMMAL KOUSU v. UCHUMMAL RAGHAVAN AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 27TH DAY OF NOVEMBER 2017/6TH AGRAHAYANA, 1939** ## **OP(C).No. 2813 of 2017 (O)** ## **---------------------------** ## **OS.NO. 115/2013 of MUNSIFF COURT, THALASSERY.** ## **----------------** ## **PETITIONER(S):** **----------------------** **UCHUMMAL KOUSU, D/O. KORAN, AGED 67, AMBIKALAYAM, P.O.PALAYAD, DHARMADAM AMSOM, PALAYAD DESOM, THALASSERY TALUK, KANNUR DISTRICT.** ## **BY ADVS.SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA** ## **RESPONDENT(S):** **------------------------** ## **1. UCHUMMAL RAGHAVAN,** **S/O. RAMAN, AGED 71, NO OCCUPATION, UCHUMMAL HOUSE, DHARMADAM AMSOM, PALAYAD DESOM, THALASSERY TALUK, KANNUR DISTRICT - 670 101.** ## **2. NALINI KALIKOTTUVALAPPIL,** **W/O. UCHUMMAL BHARATHAN, VINEETH NIVAS, P.O.PALAYAD, DHARMADAM AMSOM, PALAYAD DESOM, THALASSERY TALUK, KANNUR DISTRICT - 670 101.** ## **3. VINEETH** - **S/O. UCHUMMAL BHARATHAN, VINEETH NIVAS, P.O.PALAYAD, DHARMADAM AMSOM, PALAYAD DESOM, THALASSERY TALUK, KANNUR DISTRICT - 670 101.** ## **4. VIJEESH,** **S/O. UCHUMMAL BHARATHAN, VINEETH NIVAS, P.O.PALAYAD, DHARMADAM AMSOM, PALAYAD DESOM, THALASSERY TALUK, KANNUR DISTRICT - 670 101.** **R1 TO R4 BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** **OP(C).No. 2813 of 2017 (O)** **--------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS --------------------------------------EXHIBIT P1 TRUE COPY OF THE O.S.NO. 115/2013 ON THE FILE OF THE COURT OF MUNSIFF, THALASSERY. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 26.06.2013 FILED BY THE DEFENDANTS. EXHIBIT P3 TRUE COPY OF THE AMENDMENT PETITION BEARING I.A.NO.1797/17 IN O.S.NO. 115/13. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 13.09.2017 IN I.A.NO. 1797/17 IN O.S.NO. 115/13.** **RESPONDENT(S)' EXHIBITS - NIL ------------------------------------------------** ## **TRUE COPY** ## **PS TO JUDGE** **TS** ## **ANIL K. NARENDRAN, J. ----------------------------------------------O.P(C) No.2813 of 2017 -----------------------------------------------** Dated this the 27[th] day of November, 2017 ## **J U D G M E N T** The petitioner, who is the plaintiff in O.S.No.115/2013 on the file of the Munsiff's Court, Thalasery is before this Court in this Original Petition filed under Article 227 of the Constitution of India, seeking an order to set aside Ext.P4 order dated 13.9.2017 of the said court in I.A.No.1797/2017 in O.S. No.115/2013. The said interlocutory application is one filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 seeking an order to amend the plaint for incorporating mainly a declaratory relief as to the plaintiff's exclusive title over the plaint schedule property. The relief sought for in the aforesaid application was opposed by the respondents/defendants by filing a counter statement. The court below rejected I.A.No.1797/2017 by a cryptic order, which reads thus; “Amendment sought is a barred claim. Hence it cannot be allowed and the petition is dismissed.” 2. On 20.9.2017 when this Original Petition came up for ## **O.P(C) No.2813 of 2017** :-2-: admission, this Court issued urgent notice on admission by speed post to the respondents. This Court has also granted an interim stay of all further proceedings in O.S.No.115/2013 pending before the Munsiff's Court, Thalassery for a period of one month and the said interim order, which was extended from time to time, is still in force. 3. Heard the learned counsel for the petitioner/plaintiff and also the learned counsel for the respondents/defendants. 4. The sole issue that arises for consideration in this Original Petition is as to the legality or otherwise of Ext.P4 order passed by the court below by which I.A.No.1797/2017 filed by the petitioner/plaintiff seeking an order to amend the plaint stands dismissed. 5. O.S.No.115/2013 is one filed by the plaintiff seeking permanent prohibitory injunction restraining the defendants from entering into or trespassing into the plaint schedule property or committing any waste therein. 6. In the suit, the defendants filed Ext.P2 written statement dated 26.6.2013 contending that the plaintiff has no exclusive right or title over the plaint schedule property and that she is only a co-owner of the said property like the ## **O.P(C) No.2813 of 2017** :-3-: defendants. When the suit was listed for trial, the plaintiff filed I.A.No.1797/2017, an application filed under Order VI Rule 17 of the Code seeking an order to amend the plaint mainly for incorporating a declaratory relief as to her exclusive title and possession over the plaint schedule property. To the said application the defendants filed objection contending, inter alia, that the application for amendment is highly belated and the same is filed only when the suit is listed for trial and as such, the same cannot be entertained. The amendment sought for will change the nature and character of the suit. Further, the defendants filed written statement denying the exclusive right of the plaintiff over the plaint schedule property in June 2013. Therefore, the right to seek a declaration as sought for in the application for amendment arose in the year 2013 itself, which should have been sought for within three years from the date of accrual of the right. As such, the amendment sought for is barred by limitation. 7. In **Woolcombers of India Ltd. v. Woolcombers** **Workers Union [(1974) 3 SCC 318]** the Apex Court held that, while considering the challenge made against an award under Section 11 of the Industrial Disputes Act, 1947 held that the **O.P(C) No.2813 of 2017** :-4-: giving of reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfitness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to the Apex Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. Therefore, the Apex Court emphasised ## **O.P(C) No.2813 of 2017** :-5-: that judicial and quasi judicial authorities should always give the reasons in support of their conclusions. 8. In **Assistant Commissioner, Commercial Tax Department v. Shukla and Brothers [(2010) 4 SCC 785]** the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the court should meet with this requirement with higher degree of satisfaction. 9. In **Shukla and Brothers' case (supra)** the Apex Court held further that, a litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non recording of reasons could lead to dual ## **O.P(C) No.2813 of 2017** :-6-: infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment. 10. In **English v. Emery Reimbold and Strick Ltd. [(2002) 1 WLR 2409]** the Court of Appeal held that, a judicial decision which affected the substantive rights of the parties should be reasoned, although some judicial decisions, e.g. interlocutory case management decisions, did not require reasons; that, while a judge was not obliged to deal with every argument or identify or explain every factor which weighed with him, the issues the resolution of which were vital to his conclusion should be identified and the manner in which he resolved them briefly but clearly explained, so that the **O.P(C) No.2813 of 2017** :-7-: judgment enabled the parties and any appellate tribunal readily to analyse the reasoning essential to his decision. 11. Admittedly, in the instant case, Ext.P4 order of the court below is a cryptic order, which does not disclose any reason whatsoever. Such an order passed by the court below suffer from vice of arbitrariness. Since giving of reasons is an essential element of administration of justice, such an order passed by the court below must speak on its face. A cryptic order passed by the court below like Ext.P4, which is under challenge in this original petition, virtually makes the supervisory jurisdiction under Article 227 of the Constitution nugatory and ineffective, inasmuch as, such an order which does not disclose any reasons will be of little assistance to this Court, while analysing the reasoning essential to such a decision. 12. Viewed in the light of the law laid down in the decisions referred to supra, Ext.P4 order of the court below cannot be sustained. 13. The learned counsel for the petitioner/plaintiff and also learned counsel for the respondents/defendants advanced arguments touching the merits of the amendment sought for in **O.P(C) No.2813 of 2017** :-8-: I.A.No.1797/2017. It is for the court below to consider those contentions and pass a reasoned order, after affording both sides an opportunity of being heard. In the result, this Original Petition is disposed of setting aside Ext.P4 order dated 13.9.2017 in I.A.No.1797/2017 in O.S.No.115/2013 of the Munsiff's Court, Thalassery and the said court is directed to reconsider the matter and pass a reasoned order, as expeditiously as possible, at any rate, within a period of two months from the date of production of a certified copy of this judgment. **-** Sd/ **ANIL K. NARENDRAN JUDGE** //True Copy// P.A to Judge ab