Vimala Kumari v. Rugmini Amma and Vijith Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY, THE 9TH DAY OF DECEMBER 2016/18TH AGRAHAYANA, 1938** ## **FAO.No. 249 of 2013 ()** **-----------------------** **AGAINST THE JUDGMENT IN AS 84/2005 of SUB COURT, ATTINGAL DATED 27-03-2013** **AGAINST THE JUDGMENT IN OS 173/1999 of MUNSIFF'S COURT, ATTINGAL DATED 30-11-2004** **--------------------------** ## **APPELLANT/RESPONDENT/PLAINTIFF :** **---------------------------------------------------------** **VIMALA KUMARI, D/O. MADHAVI AMMA, RESIDING AT RAJEEVAM BHAVAN, ANDOOR KUZHIVILLAM VILLAGE, FROM AKKOTTU VEEDU, CHIRAYINKEEZHU DESOM, SARKARA VILLAGE, ATTINGAL.** **BY ADVS.SRI.R.S.KALKURA** **SMT.R.BINDU SRI.M.S.KALESH SMT.A.V.PRIYA SRI.HARISH GOPINATH SRI.GENS GEORGE ELAVINAMANNIL SMT.M.K.LEELAKUMARI SRI.K.ACHANKUNJU SRI.JOHNSON JOSE PANJIKKARAN** ## **RESPONDENTS/APPELLANTS/DEFENDANTS :** **------------------------------------------------------------------** **1. RUGMINI AMMA, D/O. SARASWATHY, RESIDING AT AKKOTTU VEEDU, CHIRAYINKEEZH DESOM, SARKARA VILLAGE, ATTINGAL.** **2. VIJITH KUMAR, S/O. BHASKARA PILLAI, RESIDING AT AKKOTTU VEEDU, CHIRAYINKEEZH DESOM, SARKARA VILLAGE, ATTINGAL.** ## **R1 & R2 BY ADV. SRI.V.SURESH SRI.G.SUDHEER** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09-12-2016, ALONG WITH FAO. 250/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **STK** ## **A. HARIPRASAD, J.** ## **-------------------------------** ## **F.A.O. No.249 and 250 of 2013** ## **----------------------------------------------** ## **Dated this the 9[th] day of December, 2016** ## **COMMON JUDGMENT** These appeals arise out of a common judgment passed by the lower appellate court in two first appeals heard and decided together. ## 2. Facts in brief are as follows: The appellant in FAO 249/2013 before this Court is the plaintiff in O.S.173/99 before the Court of Munsiff, Attingal. The suit is one for prohibitory injunction. It is contended by the appellant that the property exclusively belongs to her and she is in possession of the property. It is averred in the claim that the respondents have preferred O.S.136/99 before the same court claiming a path way through the eastern boundary of the plaint schedule property. The appellant further contended that no such way is in existence and the respondents have no right or possession over the property. ## **F.A.O. No.249 and 250 of 2013 2** 3. The respondents/defendants in the suit opposed the plaint claim and reiterated their contentions raised in O.S.136/99 filed by them. 4. The facts in O.S.136/99 would show that the respondents’ property is situated on the northern side of the appellant’s property. In the sketch submitted by the Commissioner, it is mentioned that plot C shown is the appellant’s property and plots A and B are the respondents' property. Plot D on the eastern side of plot C is the disputed pathway. The respondents contended that they have a right of easement by necessity through plot D. This right is denied by the appellant. It is also contended by the appellant that plots A and B abut a pathway on the southern side and therefore, their claim for easement of necessity is unsustainable. 5. Pending suit I.A.No.2140/2002 was filed by the respondents before the trial court under Order 6 Rule 17 of the Civil Procedure Code, 1908 (in short, the Code) seeking an amendment to the plaint. They sought to incorporate certain pleadings and prayed for an easement ## **F.A.O. No.249 and 250 of 2013 3** right by prescription. It is seen that the application was allowed by the trial court on 1.10.2002. Thereafter, the parties went for trial and adduced evidence in tune with the amended plaint. But, the lower court while dismissing the respondents’ suit and allowing the appellant’s suit observed that the respondents failed to carryout amendment to their plaint as permitted by the trial court. The trial court on the basis of evidence found no justification for the respondents’ claim of easement over plot D in the Commissioner's sketch. 6. Aggrieved by the judgment and decree of the trial court, the respondents approached the lower appellate court with two separate appeals against the dismissal of their suit and decreeing the suit filed by the appellant. Lower appellate court after considering the issues, disposed of the appeals setting aside the judgments and decrees of the trial court in both the suits and remanded the matter for incorporating the amendment allowed as per order on I.A.2140/2002. It was also directed by the lower appellate court that after carrying out the ## **F.A.O. No.249 and 250 of 2013 4** amendment, an opportunity has to be given to the respondents to file additional written statement, if any. Both parties were permitted to adduce evidence, if necessary. 7. The order of remand and the directions wherein are seriously challenged by the appellants in these appeals. 8. Heard Shri.Kalkura, learned counsel appearing for the appellant and Shri.Suresh, learned counsel appearing for the contesting respondents. 9. Shri.Kalkura, learned counsel appearing for the appellant contended that the order of remand is legally unsustainable. The amendment application filed by the respondents under Order 6 Rule 17 of the Code for incorporating a plea of easement by prescription over plot D in the sketch was allowed by the court below. However, the amendment was not carried out at the time when the parties went for trial. What is the legal effect of failure to amend the pleadings after the order to do so is the question to be decided. Order 6 Rule 18 of the Code ## **F.A.O. No.249 and 250 of 2013 5** ## deals with this subject. It is extracted hereunder; “18. Failure to amend after order- If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is hereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.” 10. The provisions in unequivocal terms say that, if a party, who obtained an order for leave to amend the pleadings, fails to do so within the time limit for that purpose or if, no time is thereby limited, then within fourteen days from the date of order, shall not be permitted to amend after the expiry of such limited time or fourteen days as the case may be, unless the time is extended by the court. The phraseology employed in the provision is clear and it creates a bar against the parties, who obtained a favourable order under Order 6 Rule 17 of the Code, if he fails to carry out amendment within the ## **F.A.O. No.249 and 250 of 2013 6** stipulated period. Learned counsel for the appellant relying on **Gomathi Amma v. Meenakshi Amma (1994 (1)KLT 315)** contended that, in an identical fact situation, a learned Single Judge of this Court has taken a view that the appellate court has no power to allow the amendment after the prescribed period, even if it was allowed by the trial court. Paragraph 7 in the decision reads as follows; “On a careful reading of Rule 18 it is clear beyond doubt that the order of extension can be granted only by the court which allowed the amendment. If the party who has obtained an order for leave to amend has failed to amend the plaint within the period stipulated by the court or within 14 days from the date of the order as the case may be, he shall not be permitted to amend after the expiration of that period. In other words, the right of the plaintiff to produce the amended plaint and to carry out the amendment in the original plaint is lost consequent to such failure. But the court is given the power to extend the time which can only be on the motion of the plaintiff. Under the rule the amendment has to be made within the time ## **F.A.O. No.249 and 250 of 2013 7** fixed or extended by the court which allowed the amendment. If the amendment is allowed by the trial court the request for extension has also to be made to that court and that court alone has power to permit the plaintiff to carry out the amendment in the original plaint. In case the amendment is allowed by the appellate court the request has to be made to that court and not to the trial court. In short the word ‘court’ in Rule 18 of Order VI has to be understood in the context in which it is used. In case the amendment is allowed by the trial court, the word ‘court’ in Rule 18 means the trial court. If the amendment is allowed by the appellate court the word ‘court’ means the appellate court. Since the amendment in this case was allowed by the trial court the request for extension cannot be entertained by the lower appellate court. The request was rightly rejected by that court.” 11. Learned counsel for the respondents argued that the appellate court has all the powers as that of the trial court by virtue of Section 107 of the Code. It is the contention of the respondents that if that be so, the amendment could be allowed by the appellate court as well in an appropriate case. According to the learned ## **F.A.O. No.249 and 250 of 2013 8** counsel, this is a case wherein the parties bona fide went for trial without noticing the fact that the amendment was not carried out. It is also submitted that there was a change of vakkalath after the amendment and the counsel who conducted the trial might have been under the impression that the amendment had been carried out. Whatever that be, fact remains that the amendment was not effectuated in the plaint. By invoking Section 107 of the Code, the appellate court cannot circumvent the bar under Order 6 Rule 18 of the Code. It is the ratio in **Gomathi Amma's** case. That question was specifically considered and answered in the negative by the learned single judge. 12. Besides all these legal infirmities, another important issue arising for consideration is whether the court below was justified in remanding the case for achieving a purpose, which is not permitted by law. It has been repeatedly held by the apex Court that a remand shall not be made for a mere asking. The lower appellate court failed to consider the legal principles in ## **F.A.O. No.249 and 250 of 2013 9** Order 41 Rule 23A of the Code, while exercising the power of remand. Therefore, I find that, the order of remand is unjustifiable. The contentions in the appeal are meritorious and are entitled to be upheld. In the result, these appeals are allowed. The impugned order of remand in A.S.No.84 and 85 of 2005 on the file of the Court of Subordinate Judge, Attingal is set aside. The lower appellate court is directed to dispose of the appeal on merits with reference to the evidence available in the case. The parties are free to raise appropriate contentions to justify their submissions. The parties are directed to appear before the lower appellate court on 16.01.2017. All pending interlocutory applications will stand dismissed. STK Sd/- **A. HARIPRASAD, JUDGE** //TRUE COPY// //P.A. TO JUDGE//