Vincent, Sunny and Benedict v. Chandravahi and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 WP(C).No. 20218 of 2010(O) -------------------------AGAINST THE ORDER IN IA.561/2010 IN OS.346/2005 of MUNSIFF COURT,VADAKKANCHERRY .................... PETITIONER(S)/RESPONDENTS: --------------- 1. VINCENT, S/O.PUTHIRI LATE THOMAS, VELOOR VILLAGE, VENGILISSERRY DESOM, THALAPPILLY TALUK. 2. SUNNY, S/O.PUTHIRI LATE THOMAS, VELOOR VILLAGE, VENGILISSERRY DESOM, THALAPPILLY TALUK. 3. BENEDICT, S/O.PUTHIRI LATE THOMAS, VELOOR VILLAGE, VENGILISSERRY DESOM, THALAPPILLY TALUK. - BY ADV. SRI.V.M.KURIAN - SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT(S): - --------------- CHANDRAVAHI, W/O.POTTEKKATTU ARAVINDAKSHAN & D/O.IYYANIKKATTIL KANDAPPAN, THEKKUMURI DESOM, MUNDATHIKODU VILLAGE, MUNDATHIKODE P.O. - 680 623, THALAPPILLY TALUK, THRISSUR DISTRICT. ADV. SRI.P.RADHAKRISHNAN - SRI.MADHU RADHAKRISHNAN - SRI.NELSON JOSEPH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.20218/2010 PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.346/2005 OF MUNSIFF COURT, WADAKKANCHERRY EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS EXT.P3 TRUE COPY OF THE PLAINT IN OS NO.156/1997 OF MUNSIFF'S COURT, WADAKKANCHERRY EXT.P4 TRUE COPY OF THE SKETCH PREPARED BY THE TALUK SURVEYOR EXT.P5 TRUE COPY OF THE JUDGENT DATED 20.09.2001 IN OS NO.156/1997 PASSED BY UNSIFF COURT, WADAKKANCHERRY EXT.P6 TRUE COPY OF THE SKETCH PREPARED BY THE SURVEY OFFICER EXT.P7 TRUE COPY OF IA NO.561/10 IN OS NO.346/05 OF MUNSIFF COURT , WADAKKANCHERRY EXT.P8 TRUE COPY OF OBJECTION FILED BY THE PETITIONERS EXT.P9 TRUE COPY OF THE ORDER DATED 31.5.2010 IN IA NO.561/2010 PASSED BY THE MUNSIFF COURT, WADAKKANCHERRY //TRUE COPY// ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------W.P.(C) No.20218 of 2010 -------------------------------------Dated this the 15[th] day of September, 2010.** ## **JUDGMENT** Defendants in O.S.No.346 of 2005 of the court of learned Munsiff, Wadakkancherry challenge Ext.P9, order allowing amendment of plaint vide I.A.No.561 of 2010. Petitioners contended that amendment could not be permitted for various reasons including that it altered nature and character of the suit, is based on an entirely different cause of action, relate to a property other than the one in respect of which declaration was sought for originally and that the claim by way of amendment is made after the period of limitation which affected right of petitioners to resist the suit on the ground of limitation. Learned Munsiff has rejected the objection raised byof petitioners and allowed the application vide Ext.P9, order. That order is under challenge. 2. Respondent/plaintiff claimed title and possession over 2.47 acres (A schedule in the plaint) as per assignment deed No.184 of 1976. It is her case that plaint B schedule as originally stated in the plaint - 8.13 cents in survey No.756/3 is also in the possession of herself and her predecessors-in- interest time immemorial and thus she has perfected title by adverse possession and limitation regarding the said 8.13 cents. Petitioners resisted the suit contending that respondent has no right or possession over plaint B schedule which formed part of property belonging to them as per sale deed Nos.2024 and 2025 of 1973. They also resisted the suit on the ground of previous litigations and findings therein. While so, Advocate Commissioner inspected property **WP(C) No.20218/2010** 2 with the assistance of a Surveyor and submitted report and plan. Advocate Commissioner reported that since middle measurement as per the dhandu measurement is not stated (in respect of property of the respondent) an extent of 13.60 cents also formed part of property of respondent as per document of title relied on by her. In the light of that report and plan respondent filed I.A.No.561 of 2010 for amendment of plaint. Prayer is to delete B schedule in the plaint as originally stated and state B schedule as the said 13.60 cents. Respondent wanted to recover possession of the said 13.60 cents on the strength of her title over the said property alleging that it formed part of the 2.47 acres referred to in the document of title which I have referred to above. Learned counsel for petitioners has placed reliance on the decisions of the Supreme Court in **Baldev Singh v. Manohar Singh (2006 (3) KLT 953), Rajesh Kumar Aggarwal and others v. K.K.Modi and others [(2006) 4 SCC 385], Usha Balashaheb Swami and others v. Kiran Appaso Swami and others [(2007) 5 SCC 602], Shiv Gopal Sah alias Shiv Gopal Sahu v. Sita Ram Saraugi & Others [ AIR 2007 SC 1478]** and **Revajeetu Builders & Developers v. Narayanaswamy & sons [(2009) 10 SCC 84]** . Learned counsel contends that learned Munsiff was not correct in allowing amendment as it introduced a new cause of action, new averments in the plaint and a new item of property. It is also contended that amendment has the effect of allowing respondent to resile from the admissions made in the plaint. **WP(C) No.20218/2010** 3 3. I have gone through the decisions relied on by counsel. The principle that could be deduced from the above decisions is that the approach in the matter of amendment of plaint and written statement are different and in the matter of amendment of written statement it is possible for the court to adopt a more liberal approach even to allow inconsistant plea. Court has to decide whether amendment sought for is imperative for proper adjudication of the case, whether application for amendment is bona fide or mala fide, whether amendment would cause such prejudice to the other side which cannot be compensated adequately in terms of money, whether refusal of amendment would lead to injustice or multiple the litigation and whether proposed amendment constitutionally or fundamentally changes the nature and character of the case. As a general rule the court should decline amendment if a fresh suit on the amended claim would be barred by limitation on the date of application. In **Pankaja & another v. Yellappa (D) by L.Rs. and Others (2004** **(2) KLJ 660)** Supreme Court has held that even a relief which is barred by limitation can be allowed by amendment if it subserves cause of justice and avoids further litigation. In **Andra Bank v. ABN Amro Bank N.V. &** **Others (AIR 2007 SC 2511)** a request to incorporate a new relief by amendment was allowed. Thus, it turns out on the facts and circumstances of each case whether a request for amendment in that case is to be allowed or not. **WP(C) No.20218/2010** 4 4. Learned counsel for respondent would contend, the properties belonging to the petitioners and respondent originally belonged to the family of one Devasia and there was a partition as per document No.296 of 1122. In that partition (learned counsel for respondent contends) 2.47 acres referred to in plaint A schedule was allotted to the share of Kunju @ Porinchu while B schedule in that document, described as 3.12 acres in extent was allotted to the share of Thomas and Varghese who as per assignment deed Nos.2024 and 2025 of 1973 assigned 1.75 acres each to petitioner Nos.1 and 2 as if their entitlement as per partition was for 3.50 acres while it is contended on behalf of respondent that assignors of petitioners as per the partition deed above referred got only 3.12 acres. Respondent filed O.S.No.156 of 1997 for a decree for prohibitory injunction regarding the 2.47 acres. Petitioners made a counter claim in respect of a portion of the property they claimed as belonged to and was in their possession. The suit was dismissed observing that respondent is in possession of more than 2.47 acres. The counter claim also ended in dismissal. The appeal preferred by petitioners against the decree in the counter claim was dismissed and, I am told, a Second Appeal is pending in this Court. It is while so, that respondent filed O.S.No.346 of 2005 claiming right over the 2.47 acres (plaint A schedule) as per the document of title and over 8.13 cents by adverse possession and limitation. I stated that while so, Advocate Commissioner measured the properties and submitted a report wherein it is stated that as per dhandu measurement, 13.60 cents also should go to **WP(C) No.20218/2010** 5 respondent as per her title deed. Thereon, deleting plaint B schedule in the plaint as originally stated (8.13 cents) respondent has sought relief of recovery of possession of 13.60 cents newly added as B schedule. 5. Both sides have their own contentions as to claim of title in respect of 13.60 cents now sought to be incorporated in the plaint as B schedule by amendment. According to the respondent, discrepancy occurred on account of sub division of the survey number. Learned counsel would contend that entire property belonging to the respondent was originally in survey No.756/1 and later there happened to be a sub division and accordingly, portions of property belonging to the respondent happened to be in survey Nos.756/3 and 756/4. Learned counsel for petitioners contend that respondent can have no claim over 13.60 cents. Learned counsel points out from the plan accompanying the report submitted by Advocate Commissioner that 8.13 cents originally stated in plaint B schedule is different from 13.60 cents now sought to be incorporated as plaint B schedule. 6. It is contended by learned counsel for petitioners that cause of action pleaded in the plaint is an attempt to trespass into plaint B schedule while, now the prayer is for recovery of possession of 13.60 cents. It is not as if respondent is precluded from making a claim for recovery of possession of property by amendment provided ofcourse that claim is not barred by limitation on the date request is made. Going by the decisions on the point even a claim barred by limitation can be allowed to be incorporated by amendment if it **WP(C) No.20218/2010** 6 subserves the cause of justice. But the interest of petitioners is also to be protected. Hence the prayer for recovery of possession can be made subject to limitation if it arises from the additional written statement that petitioners may file. 7. I am unable to accept the contention that amendment if permitted would change character and nature of the suit. For, in the plaint respondent has claimed title over 2.47 acres (referred to in plaint A schedule). Ofcourse in the plaint as originally filed she also claimed title over 8.13 cents by adverse possession which is now given up and on the strength of title, recovery is prayed in respect of 13.60 cents. Since the averment in the plaint that respondent is the title holder of 2.47 acres is still there, I am not persuaded to think that because recovery of possession of 13.60 cents which the Advocate Commissioner reported formed part of property of respondent is incorporated by amendment nature and character of the suit is changed. I am persuaded to think that amendment prayed for was necessary to avoid multiplicity of suits, for, nothing prevented respondent from filing a separate suit for recovery of 13.60 cents in the light of the report of Advocate Commissioner, if she were otherwise entitled to recover that property. 8. It is then contended by learned counsel for petitioners that there are no averments in the affidavit in support of I.A.No.561 of 2010 justifying amendment of the plaint. I have gone through the affidavit and find that what is stated in the affidavit is that on perusal of the prior document of title (relating **WP(C) No.20218/2010** 7 to the property of petitioners) and in the light of report of the Advocate Commissioner (where it is stated that 13.60 cents should go to the respondent as per title deed) the amendment was necessary. I am persuaded to think that the said averments are sufficient to justify amendment prayed for. Having regard to the facts and circumstances of the case I do not find reason to interfere with the discretionary jurisdiction exercised by the learned Munsiff to allow the amendment prayed for which was intended to settle the controversy and avoid multiplicity of suits. I however, make it clear that if the issue of limitation regarding relief of recovery of possession in respect of amended plaint B schedule property arises from pleadings, that issue shall be decided by the learned Munsiff after trial of the suit. Resultantly this Writ Petition is dismissed. But it is made clear that if the question whether relief of recovery of possession of plaint B schedule as amended is barred by limitation arises from pleading, learned Munsiff shall decide that issue also while deciding the suit. **THOMAS P.JOSEPH, Judge.** **cks**