Quashed

Thomas v. Sekharan and Others

Kerala HC23 Jul 2009WP(C)/10709/2009

Case brief

AI extract

What is this about?

In a writ petition under Article 227 of the Constitution, the High Court held that the Sub Judge erred in disposing of an amendment application before hearing the pending appeal. The Court issued a call-sheet directing the lower court to reconsider the amendment application during the appeal hearing after hearing both sides to ensure justice.

What did the court decide?

The impugned order dismissing the amendment application (Ext.P5) is set aside; the court below is directed to consider the application at the time of hearing the appeal after hearing both sides.

Thomas Vs Sekharan and Others — Property and Title | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN

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THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931

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WP(C).No. 10709 of 2009(O)

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--------------------------------------AS. NO.34/2007 OF SUB COURT, PALA.

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PETITIONER:

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-------------------

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THOMAS, AGED 49 YEARS, S/O.ANTONY, THEKKEMALIYECKAL, MERILAND KARA, KADANAD VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

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BY ADV. MR.M.NARENDRA KUMAR.

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RESPONDENTS:

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------------------------

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1. SEKHARAN, AGED 51 YEARS, S/O.KRISHNAN, PANACHIKAL HOUSE, MARYLAND KARA, KADANAD VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

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2. NALINI, AGED 49 YEARS, W/O.SEKHARAN, PANACHIKAL HOUSE, MARYLAND KARA, KADANAD VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

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3. SUNNY, AGED 44 YEARS, S/O.JOSEPH, MUKKADAYIL, MARYLAND KARA, KADANAD VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C). NO.10709/2009-O:

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P.1:COP, JUDGMENT DTD. 30/11/2006 IN O.S. NO. 216/2003.

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EXT.P.2: COPY OF THE ADVOCATE COMMISSIONER'S REPORT AND PLAN.

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EXT.P.3: COPY OF THE APPLICATION FOR AMENDMENT I.A. NO. 1910/2007.

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EXT.P.4: COPY OF THE OBJECTIONS FILED BY THE RESPONDENTS.

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EXT.P.5: COPY OF THE ORDER DTD. 17/01/2009 IN I.A. NO. 1910/2007 IN A.S. NO. 34/2007 IN THE COURT OF SUB JUDGE, PALA.

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RESPONDENTS' EXHIBITS: NIL.

//TRUE COPY//

P.A. TO JUDGE.

Prv.

S.S.SATHEESACHANDRAN, J.

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----------------------------------W.P.(C).No.10709 of 2009 - O

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Dated this the 23^rd day of July, 2009

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J U D G M E N T

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This writ petition is filed seeking the following relief:

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“To issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Exhibit P4 and quash Ext.P5.”

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Petitioner is the appellant in A.S.No.34/2007 on the file

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of the Sub Court, Pala. The appeal is preferred against the decree and judgment passed in O.S.No.216/2003 on the file of the Munsiff Court, Pala which was filed by the petitioner seeking the reliefs of fixation of boundary and prohibitory injunction. Suit was dismissed, and the respondents in the petition are the defendants. In the appeal, petitioner moved an application for amendment of the plaint seeking reliefs of declaration of title and recovery of possession which was objected to by the respondents. The learned Sub Judge, after hearing the application dismissed that application. Ext.P5 is the copy of that order. Impeaching the correctness and propriety of Ext.p5 order, petitioner has filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

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W.P.(C).No.10709 of 2009 - O

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Notice was ordered to the respondents. Since notice was not returned despite considerable time, petitioner was directed to serve notice on the counsel appearing for the respondents in the court below. Petitioner has filed a memo evidencing such service as directed. Respondents on such service have not appeared before this Court. Service has been effected on the respondents is declared.

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I heard the counsel for the petitioner.

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Having regard to the submission made and the facts and circumstances presented with reference to Ext.P5 order impugned in the petition, I find the learned Sub Judge was not correct in hearing and disposing of the application for amendment before hearing the appeal, which is necessary to advance the ends of justice. Consideration of an amendment application before hearing of an appeal is likely to cause prejudice to the appellant as the entire facets of the disputes covered will not be before the court to enter a finding whether the amendment is necessary for a fair disposal of the appeal and also to advance the ends of justice. All amendments to pleadings are intended to enable a party to correct mistakes which had crept in to a pleading so that the real controversy can be adjudicated upon and given a quietus with a

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W.P.(C).No.10709 of 2009 - O

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finality. Whether in the given facts of the case the appellant/plaintiff is entitled to have an additional relief of declaration of title and also recovery of possession has to be seriously considered at the stage when the court is hearing the appeal which has been filed challenging the dismissal of his suit. So much so, Ext.P5 is set aside and the court below is directed to consider Ext.P3 application at the time of hearing the appeal and pass appropriate orders, after hearing both sides. Needless to point out, if Ext.P3 application is found allowable, it may demand remission of the case after setting aside the impugned judgment to provide opportunity to the respondents/defendants to file written statement and for adjudication of the additional reliefs claimed by the appellant/plaintiff.

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Subject to the above observations, this writ petition is closed.

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S.S.SATHEESACHANDRAN, JUDGE.

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bkn/-

Thomas v. Sekharan and Others

Case brief

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Thomas v. Sekharan and Others

Case brief

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