Allowed

Soman v. Mohammed @ Katha Mohammed

Kerala HC15 Feb 2013OP(C)/576/2013

Case brief

AI extract

What is this about?

The High Court allowed the petitioner's application to amend the plaint schedule to correct boundary mistakes. The order set aside the lower court's dismissal and directed amendment within 14 days, deeming the delay justified as the mistake was noticed only during examination of documents.

What did the court decide?

I.A. No.100 of 2013 allowed; Ext.P6 order set aside; Petitioner to carry out amendment within 14 days.

Soman Vs Mohammed @ Katha Mohammed — Property and Title | 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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FRIDAY, THE 15TH DAY OF FEBRUARY 2013/26TH MAGHA 1934

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OP(C).NO. 576 OF 2013 (O)

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I.A. NO.100 OF 2013 IN O.S. NO.39 OF 2010, MUNSIFF'S-MAGISTRATE COURT, MANNARKKAD

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PETITIONER(S):

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SOMAN, AGED 54 YEARS S/O.LATE PURUSHOTHAMAN, NEDUMPALLIYALIL HOUSE SHOLAYAR AMSOM DESOM, MANNARKAD, PALAKKAD.

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BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA

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RESPONDENT(S):

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1. MOHAMMED @ KATHA MOHAMMED, AGED 69 YEARS KARIMBA AMSOM, DESOM, MANNARKKAD TALUK - 678 597.

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2. JAMEELA,, AGED 52 YEARS W/O.MOHAMMED @ KATHA MUHAMMEDKARIMBRA AMSOM, DESOM MANNARKKAD TALUK - 678 597.

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3. CHANDRAN S/O.VADASSERY KUNHANNUI KARIMBA AMSOM, DESOM MANNARKKAD TALUK - 678 597.

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4. CHINNAKUTTAN,, AGED 69 YEARS S/O.VADASSERY KUNHANNUI, KARIMBA AMSOM, DESOM MANNARKKAD TALUK, 678 597.

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5. RASIYA,, AGED 36 YEARS W/O.PUTHANPEEDIAK ASHARAF, KARIMBA AMSOM, DESOM MANNARKKAD TALUK - 678 597.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(C) NO.576 OF 2013

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXT.P1: TRUE COPY OF THE PLAINT IN OS 39/2010 ON THE FILE OF THE MUNSIFF MAGISTRATE COURT, MANNARKKAD.

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EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN OS 39/2010.

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EXT.P3: TRUE COPY OF THE WRITTEN STATEMENT IN OS 39/2010 FILED BY THE SUPPLEMENTAL 5TH RESPONDENT.

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EXT.P4:TRUE COPY OF THE AFFIDAVIT AND PETITION FILED IN SUPPORT OF I.A100/2013.

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EXT.P5: TRUE COPY OF THE OBJECTIONS FILE BY THE DEFENDANTS.

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EXT.P6: TRUE COPY OF THE ORDER DATED 25/1/2013 IN I.A.100/13 IN O.S 39/2010 ISSUED BY THE MUNSIFF MAGISTRATE COURT, MANNARKKAD.

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RESPONDENT(S)' EXHIBITS: NIL

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TRUE COPY

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P.S. TO JUDGE

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THOMAS P.JOSEPH, J.

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====================================

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O.P(C) No.576 of 2013

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====================================

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Dated this the 15^th day of February, 2013

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J U D G M E N T

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When examination of petitioner-plaintiff was midway, he noticed, according to him, some inadvertent mistakes in the plaint schedule as regards boundary. Thereon he filed Ext.P4, application for amendment of the eastern, western and northern boundaries of plaint schedule. That application was dismissed by the learned Munsiff-Magistrate, Mannarkkad as per Ext.P6, order dated 25.01.2013. Hence challenge to Ext.P6, order.

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Though the respondents are served through special messenger, there is no response.

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Learned counsel for petitioner submits that what is sought to be corrected is only boundaries of plaint schedule and that the mistake came to the notice of petitioner only recently.

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As per proviso to Rule 17 of Order VI of the Code of Civil Procedure, after commencement of trial, amendment of pleadings could be permitted only if it is shown that in spite of due diligence party seeking amendment could not seek such amendment before commencement of trial. In this case

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O.P(C) No. 576 of 2013

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-: 2 :-

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petitioner stated that he noticed the mistake only recently when the documents were examined in detail. In Eapen

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Antony v. Joseph (2009 [2] KLT 849) this Court has held that even in spite due diligence a party may not know about the mistake/deficiency in the pleading which may come to his notice only during the course of trial.

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Having heard learned counsel for petitioner and gone through Ext.P4, I am inclined to think that for a proper decision of the case the amendment prayed for is necessary and that petitioner has complied with the proviso to Rule 17 of Order VI of the Code. Moreover, amendment if permitted will not affect nature and character of the suit. Hence I am inclined to allow the application.

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Resultantly, Original Petition is allowed as under:

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(i) Exhibit P6, order on I.A. No.100 of 2013 in O.S. No.39 of 2010 of the Munsiff-Magistrate Court, Mannarkad is set aside.

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(ii) I.A. No.100 of 2013 in O.S. No.39 of 2010 is allowed. Petitioner shall carry out the amendment as prayed for in Ext.P4, application within 14 days from this day.

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O.P(C) No. 576 of 2013

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-: 3 :-

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(iii) On such amendment, learned Sub Judge shall give opportunity to the respondents to file additional written statement to the amended plaint.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Soman v. Mohammed @ Katha Mohammed

Case brief

What is this about?

What did the court decide?

Soman v. Mohammed @ Katha Mohammed

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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