W.P.(C).No. 31238 of 2006 (Petitioners in I.A. No. 2034/2006, Addl. Appellants) v. Gangadharan Nair and K. Raveendran Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929** **WP(C).No. 31238 of 2006(R)** **--------------------------** **AGAINST THE ORDER DATED 01/11/2006 IN IA.NO.2034/06 IN AS.456/1991 of III ADDL. DISTRICT COURT, TRIVANDRUM** **....................** ## **PETITIONERS:PETITIONERS IN I.A.- ADDL.APPELLANTS:** **---------------------------------------------------------------------------------** ## **1. B. PADMAKUMARI,** - **TC.15/350, KOCHUSSERI VEEDU, EDAPAZHANJI, SASTHAMANGALAM, THIRUVANANTHAPURAM.** ## **2. BHARGAVI AMMA,** - **VADAKKE KOCHUSSERI VEEDU, EDAPAZHANJI, -DO- -DO-.** ## **3. S. RATNA KUMARI OF -DO-.** ## **4. S. HARIKUMAR OF -DO-.** **BY ADV. SRI.S.JAMES VINCENT** **RESPONDENTS:** **-------------------------** ## **1. GANGADHARAN NAIR,** **VRINDAVAN, TC.10/452, EDAPAZHANJI,SASTHAMANGALAM, TRIVANDRUM FROM MADATHU VEEDU, PALLATTUKONAM, ANCHUMADA VILLAGE, TRIVANDRUM, NOW RESIDING AT TC.NO.41/1885, KIZHAKEPATTANAM LANE,MANACAUD P.O., TRIVANDRUM-9.** **2. K. RAVEENDRAN NAIR, -DO-, NOW RESIDING AT WARD NO.13/23, PARVATHY VILASAM, VENGANOOR, CHAVADINADA, TRIVANDRUM.** **BY ADV. SRI.R.S.KALKURA** **SRI.M.S.KALESH** **SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.KIRAN SANKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/09/2007, THE COURT ON 7/03/2008 DELIVERED THE FOLLOWING:** Kss ## **WPC.NO.31238/2006 R** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1: COPY OF THE DECREE DTD. 25/01/1991 IN O.S.NO.630/1984 OF THE MUNSIFF'S COURT, THIRUVANANTHAPURAM.** - **EXT.P2: COPY OF THE MEMORANDUM OF APPEAL DTD. 5/10/1991 IN A.S.NO.456/1991 OF THE DISTRICT COURT, THIRUVANANTHAPURAM.** - **EXT.P3: COPY OF THE MEMORANDUM OF APPEAL IN S.A.NO.942/2000 OF THE HON'BLE HIGH COURT OF KERALA.** - **EXT.P4: COPY OF THE JUDGMENT DTD. 3/04/2002 IN S.A.NO.942/2000 OF THE HON'BLE HIGH COURT OF KERALA.** - **EXT.P5: COPY OF THE ROUGH SKETCH OF THE SUIT PROPERTY.** - **EXT.P6: COPY OF THE JUDGMENT DTD. 8/06/2006 IN WP(C) NO.18298/2004 OF THE HON'BLE HIGH COURT OF KERALA.** - **EXT.P7: COPY OF THE AFFIDAVIT WITH I.A.NO.2034/2006 DTD. 18/07/2006 IN A.S.456/1991 OF THE DISTRICT COURT, THIRUVANANTHAPURAM.** - **EXT.P8: COPY OF OBJECTIONS FILED BY THE RESPONDENTS IN I.A.NO. 2034/2006 DTD. 18/07/2006 IN A.S.456/1991 OF THE DISTRICT COURT, THIRUVANANTHAPURAM.** - **EXT.P9: COPY OF ORDER DTD. 1/11/2006 ON IA.2034/2006 IN ...DO.....** - **EXT.P10: COPY OF THE WRITTEN STATEMENT FILED BY NARAYANA PILLAI SANKARA PILLAI, THE DEFENDANT, IN O.S.NO.630/1984 OF THE MUNSIFF'S COURT, TRIVANDRUM.** - **EXT.P11: COPY OF THE JUDGMENT DTD. 25/01/1991 IN DO, WITH THAT OF THE ORDER DTD. 11/08/1988 IN R.C.NO.58/1986.** - **EXT.P12: COPY OF THE JUDGMENT DTD. 30/06/1998 IN AS.NO.456/1991 OF THE DISTRICT COURT, TRIVANDRUM.** ## **1ST RESPONDENT'S EXHIBITS:** - **EXT.R1(A): COPY OF THE JUDGMENT IN O.S.NO.187/65 DTD. 29/02/1968.** - **EXT.R1(B): COPY OF THE FINAL DECREE DTD. 24/02/1979 IN O.S.NO.187/1965.** ## Kss **..2/-** **....2....** ## **WPC.NO.31238/2006 R** **EXT.R1(C): COPY OF THE JUDGMENT IN O.S.NO.630/84 DTD. 25/01/1991. EXT.R1(D): COPY OF THE MEMORANDUM OF APPEAL AS A.S.NO.456/91. EXT.R1(E): COPY OF THE JUDGMENT IN C.R.P.NO.794/99 DTD. 13/07/1999. EXT.R1(F): COPY OF THE OBJECTION FILED BY THE RESPONDENT IN COMMISSION APPLICATION.** **EXT.R1(G): COPY OF THE OBJECTION FILED BY THE RESPONDENT IN AMENDMENT APPLICATION.** **EXT.R1(H): COPY OF THE JUDGMENT DTD. 08/06/2006 IN WP(C) NO. 18298/2004.** ## **/TRUE COPY/** **P.S.TO JUDGE** Kss ## **PIUS.C.KURIAKOSE, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c).No. 31238 OF 2006** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of March, 2008 ## **JUDGMENT** Under challenge in this writ petition, filed under Article 227 of the Constitution of India by the additional appellants in A.S.No.45456/1991 on the file of the third additional district court at Thiruvananthapuram, is Ext.P9 order passed by the learned District Judge in Ext.P7 application, which was an application under Order VI Rule 17(4) for amendment of the written statement. The amendment sought to be incorporated in the written statement raises a new plea disputing the identity of the suit property and thereby challenging the claim and title of the possession of the plaintiff over the same. According to the petitioners, the appeal is directed against the judgment and decree in O.S.No.630/1984 of the Munsiff Court, Thiruvananthapuram and against the decree of the District Court dismissing that appeal, a second appeal S.A.No.942/2000 has preferred before this court. Contention raised in the second appeal was regarding WP(C)No.31238/06 2 identity of the B schedule property. The grievance raised in the second appeal was that though a number of documents touching on the above aspects had been produced before the trial court and the appellate court, they were wrongly rejected. In the second appeal also, a number of documents had been produced and to substantiate this contention an application for issuance of a Commission was also filed. This court allowed the second appeal in part and remanded the matter with a direction to have the matter considered by the court of appeal afresh. According to the petitioners they filed I.A.No.3528/02 after remand for the appointment of a Commission. But that commission application was dismissed in view of the earlier order passed by the Munsiff in I.A.No.6200/1988 which was affirmed by this court in C.R.P.No.2794/2002. Against the order dismissing the commission application, W.P.(C)No.18298/2004 was preferred before this court. But this court dismissed the same on the ground that necessity for issuance of a Commission can arise only when there is a dispute regarding the identity of the property, where as there is no such dispute in the written statement. According to the petitioners, liberty has been WP(C)No.31238/06 3 given to them for raising it as a ground in appropriate proceedings and hence they have filed the instant application for amendment. 2. Ext.P8 objections were filed to Ext.P7- I.A.No.2034/2006 by the respondents. It was contended that the petition is a frivolous and vexatious petition filed solely with the intention of protracting the matter and thereby to harass the defendants who have secured a decree for redemption way back in 1979. The appellant has filed I.A.No.6200/1988 for evaluating the improvements and that I.A. was dismissed on 04.04.1989. At that time, the appellant had no dispute regarding the identity of the property. The appellants are persons claiming the leasehold right under the second defendant in the suit who was the mortgagee. A decree for redemption was passed in O.S.No.187/ 1965. In that suit, the second defendant therein had claimed value of improvements and value of improvements had been deposited. The present appellants who claimed right under the mortgagee is not entitled to raise any contention regarding the identity of the property. The original written statement had been filed on 12/11/1984 and after a lapse of 22 years they cannot now file the WP(C)No.31238/06 4 present petition raising the very same ground. 3. The learned District Judge has considered the rival contentions elaborately and noticed that there is a trend of liberality in decisions towards application seeking amendment of pleadings even if they are belatedly filed. Referring to the judgments cited at the Bar, the court held that allowing the application will not be justified. The court noticed that the delay was inordinate and the amendment if allowed will enable the petitioners to get away from the admissions which they/their predecessor in interest had already made regarding the identity of the property. The amendment if allowed will cause serious prejudice to respondents and on those reasons the application was dismissed and Ext.P9 order was passed. 4. I have heard Sri.S.James Vincent, counsel for the petitioners and Sri.R.S.Kalkura, counsel for the respondents. Sri.S.James Vincent, apart from reading over to me Ext.P9 would refer to Ext.P3, P11, P4 ( judgment in the second appeal) , Ext.P3 second appeal memorandum etc. during the course of his submissions. He would refer to paragraph 7 of Ext.P4 judgment and submit that it is not WP(C)No.31238/06 5 correct to say that the issue regarding identity of the property is concluded. Sri.James Vincent also placed before me a copy of the written statement which had been filed by the predecessor in interest of the petitioners to show that the observation of the District Judge that the question of identity of the property had been conceded by the petitioners is wrong. Sri.S.James Vincent would cite a number of authorities in support of his arguments that the court below has fell in error while exercising its powers to allow amendment of the pleadings. The judgment of the Supreme Court in **Ishwardas v. The State of Madhya Pradesh** ( AIR 1979 Supreme Court 551), **Basavanjaggu Dbobi v. Sukhandan Ramdas Chaudhary and others** ( 1995 Supp (3) Supreme Court Cases 179), **Sadhana Lodh v. National Insurance Co.Ltd and another** ( 2003(3) Supreme Court Cases 524), judgment of this court in **Bhaskaran Nair and another v. P.Chandramathiyamma** ( ILR 2006(1)Kerala 126) were only some of the decisions cited. Sri.S.James Vincent would also rely on the judgments of the Supreme Court in **Rajesh Kumar Aggarval and others v. K.K. Modi and others** ( 2006(4) Supreme Court Cases 385), WP(C)No.31238/06 6 ## **P.Chandrasedharan and others v. S.Kanakarajan and others** ( 2007(5) Supreme Court Cases 669) and in Baldev Singh v. Manohar Singh ( AIR 2006 SCC 2832) wherein a Division Bench consisting of Honourable Justice Dr.AR.Lakshmanan and Honourable Justice Tarun Chatterjee has held that the court should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused. 5. Per contra, Sri.R.S.Kalkura, also did not lag behind in citing decisions. The judgment of this court in **Kalpakamani and others v. Shajathan and another** ( 2005(3)ILR 860) was only one among the decisions cited by him. He would remind me on the strength of the above decision regarding the contours of this court's supervisory jurisdiction under Article 227. The constitutional jurisdiction whether it be under Article 226 or 227 can be invoked only for correcting the jurisdictional error. This court does not sit in appeal over Ext.P9, he would submit. 6. Having considered the rival submissions addressed at the Bar and in the light of the judicial precedents cited before me,I am of WP(C)No.31238/06 7 the view that even though the decisions justify a most liberal approach towards the application for amendment of pleadings, it cannot be said on the facts and circumstances which attended on this case that the learned District Judge had fallen into serious errors jurisdictional or otherwise while dismissing Ext.P7 application. After all this court does not sit in appeal over Ext.P9. The contours of this court's jurisdiction under Article 227 are well defined. The yardsticks for invoking supervisory jurisdiction are well neigh settled. Merely because of the order of the subordinate court is erroneous, this court will not invoke supervisory jurisdiction. Invoking of supervisory jurisdiction will be in exceptional situations. The objective underlying the supervisory powers of the High Courts under Article 227 is only to ensure that the Subordinate courts keep within their jurisdiction. The limits of the supervisory jurisdiction will enable this court to correct or set aside the orders of its subordinate court which violate the fundamental rules of law and judicial proceeds, which results in failure of justice or in patent injustice or is of such a nature as to branded as perverse in the sense that such such orders will be ordinarily be passed by persons having WP(C)No.31238/06 8 reasonable knowledge of law and training in judicial process. Having scanned Ext.P9 of the learned District Judge of the above parameters, I am of the view that there is no warrant for invocation of supervisory jurisdiction for correcting Ext.P9. The amendment if allowed would cause serious legal prejudice to the respondents. In as much as the amendment will enable the petitioners to get away from the effect of the admissions made through the original written statement. At any rate I feel that it will be totally unjust to allow the petitioners to raise a question regarding the identity of the property at this belated stage when more than two decades have passed by after filing of the original written statement. Challenge against Ext.P9 fails and the writ petition will stand dismissed. No costs. **PIUS.C.KURIAKOSE JUDGE** sv. WP(C)No.31238/06 9