Partly allowed

Radha v. Sowmini

Kerala HC13 Feb 2013OP(C)/2938/2012

Case brief

AI extract

What is this about?

The Supreme Court allowed an original civil petition challenging the trial court's rejection of applications to file an additional written statement and to admit documentary evidence. The court permitted the petitioners to seek amendment of the original written statement instead and remitted the application for document admissibility for fresh decision.

What did the court decide?

Permited to seek amendment of written statement; Order on I.A. No.2059/2012 set aside and matter remitted for fresh decision; Order on I.A. No.1962/2012 noted as open for amendment application.

Radha Vs Sowmini — Civil Procedure and Limitation | Kerala HC (2013)

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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 THOMAS P.JOSEPH

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WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934

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OP(C).No. 2938 of 2012 (O)

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AGAINST THE ORDER/JUDGMENT IN OS.160/2010 of PRINCIPAL SUB COURT, PALAKKAD PETITIONER(S):

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RADHA AGED 36 YEARS W/O.LATE KRISHNAN

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HARISH, S/O.LATE KRISHNAN

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ABHILASH, S/O.LATE KRISHNAN PETITIONERS ARE RESIDING AT THAZHATHE VEEDU, VENOLI PUDUSSERY AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT.

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BY ADV. SRI.JACOB SEBASTIAN

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RESPONDENT(S): --------------SOWMINI W/O.VISWANATHAN, PALAKKAL VEEDU, KUNNAKKADU KINASSERY, PALAKKAD TALUK PALAKKAD DISTRICT.PIN 678707. R BY ADV. SRI.O.RAMACHANDRAN NAMBIAR R BY ADV. SRI.GEEN T.MATHEW

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXT.P-1	A TRUE COPY OF THE PLAINT IN O.S.NO.160/2010 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD.
EXT.P-2	A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 2, 6 AND 7 IN O.S.NO.160/2010 THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD.
EXT.P-3	A TRUE COPY OF THE I.A.NO.708/2012 IN O.S.NO.160/2010 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD.
EXT.P-4	A TRUE COPY OF THE CERTIFICATE DATED 30.06.2012 ISSUED BY THE PUTHUSSERY WEST VILLAGE OFFICE.
EXT.P-5	A TRUE COPY OF THE I.A.NO.2059/2012 IN O.S.NO.160/2010 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD.
EXT.P-6	TRUE TYPED COPY OF THE ORDER DATED 25.07.2012 IN I.A. NO.2059/2012 IN O.S.NO.160/2010 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD.
EXT.P-7	A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT OF DEFENDANTS 2, 6 AND 7 IN O.S.NO.160/2010 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD.
EXT.P-8	A TRUE COPY OF THE I.A.NO.1962/2012 IN O.S.NO.160/2010 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD.
EXT.P-9	A TRUE COPY OF THE ORDER DATED 19.07.2012 IN I.A. NO.1962/2012 IN O.S.NO.160/2010 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD.

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RESPONDENTS' EXHIBITS :NIL

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True Copy

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P.A to Judge

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THOMAS P.JOSEPH, J. ========================= O.P(C).No.2938 of 2012

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============================ Dated this the 13^th day of February, 2013

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J U D G M E N T

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Exts.P6 and P9, orders on I.A.Nos.2059 of 2012 and 1962 of 2012 in O.S.No.160 of 2010 of the learned Principal Sub Judge, Palakkad are under challenge.

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Respondent filed O.S.No.160 of 2010 for partition of the suit properties. Petitioners/defendants 2, 6 and 7 raised various contentions resisting partition and filed written statement. Case was included in the list for trial and examination of witnesses commenced. At that stage, petitioner produced Ext.P4, information said to be received from the Village Officer under the Right to Information Act and based on that, wanted additional written statement to be filed. Petitioner also wanted the above said document to be received in evidence. The request was disallowed by the learned Sub Judge as per Exts.P6 and P9, orders. Hence this original petition.

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It is contended by the learned counsel that there was partition of properties in the year, 1975 as per document No.2012 in which a share was allotted to the mother of respondent and the mother transferred her share to the respondent. Respondent is in

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O.P(C).No.2938 of 2012

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possession and enjoyment of that share. Hence respondent is estopped from claiming further partition of the suit properties. It is contended that it is only later that the said information was received by the petitioners and hence the said contention could not be raised specifically in the original written statement. Hence petitioners filed I.A.No.1962 of 2012 to receive the additional written statement and I.A.No.2059 of 2012 to receive document in evidence. Learned counsel requested that in the above circumstances learned Sub Judge ought to have allowed petitioners to file additional written statement and received the document in question.

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Learned counsel for respondent has contended that the applications are highly belated and that at any rate, request of petitioners to receive additional written statement cannot be permitted in view of the restriction contained in Rule 9 of Order VIII fo th Code of Civil Procedure (for short, "the Code”). It is further contended that Ext.P4 produced in the trial court cannot be admitted in evidence as it is only a certificate stated to be issued by the Village Officer under Rule 2 of Order XIII of the Code under which I.A.No.2059 of 2012 filed is not applicable.

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Under Rule 9 of Order VIII of the Code, no pleading subsequent to the written statement of the defendant other than by

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O.P(C).No.2938 of 2012

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way of defence to set off or counter claim shall be presented except with the leave of the Court.

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According to the respondent, petitioners want to raise a new contention not already raised in the original written statement by way of additional written statement. According to the learned counsel that its not permissible under Rule 9 of Order VIII of the Code and if at all petitioners want to raise a new plea, the remedy was to seek amendment of the original written statement already filed. Learned counsel for petitioners submit that foundation for the present plea is already laid in the original written statement in that petitioner has contended that suit property is not partible.

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Having regard to the circumstances stated above, I am inclined to think that the appropriate course available to the petitioners was to seek amendment of the original written statement and not seek permission to file a subsequent pleading as contemplated by Rule 9 of Order VIII of the Code.

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So far as the document pressed into service is concerned, question of it being received in evidence depends on its admissibility as per law.

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Having regard to the circumstances above stated, I am inclined to permit petitioners seek amendment of the written

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O.P(C).No.2938 of 2012

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statement if they are otherwise entitled as per law. So far as the document pressed into service is concerned Ext.P6, order could be set aside and admissibility of the document can be relegated to the decision of the trial court after hearing the respondent as well.

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Resultantly this original petition is disposed of as under:

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(i) It is made clear that notwithstanding dismissal of I.A.No.1962 of 2012 by Ext.P9, order it is open to the petitioners to seek amendment of the original written statement incorporating the plea raised in the original written statement

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(ii) If any such application is made, learned Sub Judge shall decide that application as provided under law and after hearing the respondent as well.

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(iii) Ext.P6, order is set aside. I.A.No.2059 of 2012 is remitted to the trial court for fresh decision. It is made clear that acceptability of the document produced in evidence would depend on its admissibility as per law. Respondent will have the opportunity to raise objection to the admissibility of the document concerned.

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Sd/-

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THOMAS P. JOSEPH, JUDGE

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Sbna

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True Copy

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P.A to Judge

Radha v. Sowmini

Case brief

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Radha v. Sowmini

Case brief

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