Allowed

Baby v. St.Andrew'S Forane Church

Kerala HC17 Sept 2014OP(C)/4238/2011

Case brief

AI extract

What is this about?

Court allowed original petition challenging dismissal of application to amend plaint. Held that increasing damages claim based on subsequent commission report without new cause of action was permissible under Order VI Rule 17 CPC and did not violate limitation bar.

What did the court decide?

Quashed impugned order. Revived and allowed amendment application. Lower court to permit amendment and give defendants opportunity to file additional written statement.

Baby Vs St.Andrew'S Forane Church — Specific Performance | Kerala HC (2014)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

¶4

WEDNESDAY, THE 17TH DAY OF SEPTEMBER 2014/26TH BHADRA, 1936

¶5

OP(C).No. 4238 of 2011 (O)

¶6

OS 192/2008 of SUB COURT, CHERTHALA

¶7

PETITIONERS:

¶8

BABY, S/O.SAMUEL KATTIMPARAMBIL HOUSE CHERTHALA SOUTH PANCHAYATH, WARD NO.16 CHERTHALA SOUTH VILLAGE, CHERTHALA.

¶9

SUNNY,S/O.SAMUEL,KATTIPARAMBIL HOUSE, CHERTHALA SOUTH PANCHAYATH, WARD NO.16, CHERTHALA SOUTH VILLAGE, CHERTHALA, NOW RESIDING AT C.C.26 ELAMAKKARA, ERNAKULAM.

¶10

BY ADVS.SRI.V.L.SHENOY

¶11

SRI.L.JAYAWANTH

¶12

RESPONDENTS:

¶13

ST.ANDREW'S FORANE CHURCH REPRESENTED BY ITS KAIKAR-PAPPACHAN, PIN-688530.

¶14

SIMON,OFFICE BEARER,C/O.ST.ANDREW'S FORANE CHURCH, ARTHUNKAL.P.O, PIN-688530.

¶15

JOHNY,OFFICE BEARER,C/O.ST.ABDREW'S FORANE CHURCH ARTHUNKAL.P.O, PIN-688530.

¶16

THANKAPPAN KOTTAPPALLIL,OFFICE BEARER, C/O.ST.ANDREW'S FORANE CHURCH, ARTHUNKAL.P.O PIN-688530.

¶17

VICAR PLUS ARATTUKULAM,C/O.ST.ANDREW'S FORANE CHURCH, ARTHUNKAL.P.O, PIN-688530.

¶18

R1 TO 5 BY ADV. SRI.R.AZAD BABU

¶19

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶20

OPC.4238/2011

¶21

APPENDIX

¶22

PETITIONERS' EXHIBITS:

¶23

EXT.P1: COPY OF THE PLIANT O.S.192/2008 OF SUB COURT,CHERTHALA

¶24

EXT.P2: COPY OF THE ORDER DATED 20-12-2008 IN I.A.1423/2008 IN O.S.NO.192/2008 ON THE FILE OF SUB COURT,CHERTHALA.

¶25

EXT.P3: COPY OF THE ORDER DATED 27-7-2009 IN I.A.552/2009 IN O.S.NO.192/2008 ON THE FILED OF SUB COURT,CHERTHALA.

¶26

EXT.P4: COPY OF THE RECEIPT DATED 5-8-2009 ISSUED BY STATION HOUSE OFFICER,ARTHUNKAL.

¶27

EXT.P5: COPY OF THE COMMISSION REPORT IN I.A.1428/2008 IN O.S.192/08 OF SUB COURT,CHERTHALA DATED 6-10-2008

¶28

EXT.P6: COPY OF THE COMMISSION REPORT DATED 3-6-2009 IN O.S.192/2008 OF SUB COURT,CHERTHALA.

¶29

EXT.P7: COPY OF THE COMMISSION REPORT IN I..806/2010 IN O.S.192/2008 OF THE SUB COURT,CHERTHALA DATED 7-2-2011.

¶30

EXT.P8: COPY OF THE PETITION IA.787/2011 IN O.S.192/2008 OF SUB COURT CHERTHALA.

¶31

EXT.P9: COPY OF THE ORDER DATED 8-11-2011 IN I.A.787/2011 IN O.S.192/2008 OF SUB COURT,CHERTHALA.

¶32

RESPONDENTS' EXHIBITS : NIL

¶33

// True Copy //

¶34

PA to Judge

¶35

B. KEMAL PASHA, J.

¶36

¶37

O.P. (Civil) No.4238 of 2011

¶38

Dated this the 17^th day of September, 2014

¶39

~ ~ ~ ~ ~ ~ ~ ~ ~

¶40

The plaintiffs in O.S. No.192/2008 of the Subordinate Judge's Court, Cherthala have come up with this OP(C) by challenging order dated 08.11.2011 passed by the court below whereby their claim for amendment of the plaint through I.A.787/2011 was declined by the court below through the dismissal of the I.A.

¶41

The suit was filed on 23.09.2008 for injunction as well as damages. By way of damages on account of the alleged illegal demolition of their residential building, it seems that the plaintiffs had limited their claim to ₹2 lakhs even though they had averred in the plaint that they had sustained a loss of ₹16.5 lakhs. Thereafter, Ext.P7 Commissioner's report has been obtained in the matter. On

¶42

the basis of Ext.P7 Commissioner's report, the petitioners

¶43

OPC.4238/2011

¶44

: 2 :

¶45

preferred Ext.P8 amendment application under Order VI Rule 17 CPC for amending the relief portion of the plaint

¶46

and for incorporating the amount of damages in relief (b) as ₹4,67,540/- with interest at the rate of 12% per annum. The proposed amendment by way of relief (b) is sought for as an alternate relief to relief (a). Through the proposed amendment by way of relief (a), the plaintiffs have sought for the restoration of the building as such.

¶47

It is a case wherein the residential building of the plaintiffs were allegedly demolished. It is true that at the time of filing the suit, they had limited their claim to ₹2 lakhs even though quantification was made with regard to the loss and damages sustained by them as an amount approximately ₹16.5 lakhs.

¶48

The amendment application was resisted by the defendants on the ground that the present attempt through

¶49

the amendment is for re-validating a claim which has already become time barred. It is contended that the

¶50

OPC.4238/2011

¶51

: 3 :

¶52

plaintiffs had deliberately abandoned their claim for any amount in excess of ₹2 lakhs and, therefore, they are not entitled to get the plaint amended for any higher amount. The court below, by appreciating the contentions of the defendants, has chosen to dismiss the I.A.

¶53

Heard the learned counsel for the petitioners and the learned counsel for the respondents.

¶54

The learned counsel for the petitioners has pointed out that at the time when the suit was filed, there were no sufficient documents to have a correct quantification of the amount of damages to which they are entitled. It is true that the plaintiffs were interested in getting the building as such restored. In the alternative, they have prayed for the relief of damages also. It seems that relief (b) is claimed only in case wherein for any technical reasons

¶55

or grounds the granting of relief (a) becomes impossible. Through the proposed amendment, the petitioners have not sought for the introduction of a new cause of action. It is

¶56

OPC.4238/2011

¶57

: 4 :

¶58

true that they had limited their claim of damages to ₹2 lakhs. It seems that the amendment has been sought for through Ext.P8 application on the basis of Ext.P7 Commissioner's report. Even though Ext.P7 Commissioner's report reveals a higher amount of damages, still, the petitioners have chosen to limit their claim for damages to ₹4,67,540/- as it is not possible for them to pay the court fee for the entire amount arrived at by the Commissioner as loss and damages.

¶59

It seems that the respondents are resisting the claim and they have contended that the plaintiffs are not entitled to get any of the reliefs sought for. A similar situation has been dealt with in the decision in A.K.Gupta and Sons Ltd. Vs. Damodar Valley Corporation [AIR 1967 SC 96], wherein the Apex court held that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than, a different or additional approach to the same facts,

¶60

OPC.4238/2011

¶61

: 5 :

¶62

the amendment will have to be allowed as decided in Charan Das Vs. Amir Khan [AIR 1921 PC 50] and L.J.Leach and Co. Ltd. Vs. Jardine Skinner and Co. [AIR 1957 SC 357]. In paragraph 10 of A.K.Gupta ( supra ), it was held:

¶63

“Now, how does the present case stand on these principles? Does the amendment introduce a new cause of action or a new case? We do not think it does. The suit was on the contract. It sought the interpretation of a clause in the contract only for a decision of the rights of the parties under it and for no other purpose. It was the contract which formed the cause of action on which the suit was based. The amendment seeks to introduce a claim based on the same cause of action, that is, the same contract. It introduces no new case of facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be made by amendment, was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction. The respondent had notice of it.

¶64

OPC.4238/2011

¶65

: 6 :

¶66

It is quite clear that the interpretation of the clause was sought only for quantifying the money claim. In the written statement the respondent specifically expressed its willingness to pay the appellant's legitimate dues which could only mean such amount as might be due according to the rates applicable on a proper interpretation of the clause. The respondent was fully aware that the ultimate object of the appellant in filing the suit was to obtain the payment of that amount. It was equally aware that the amount had not been specifically claimed in the suit because the respondent had led the appellant to believe that it would pay whatever the court legitimately found to be due. It in fact said so in the written statement. If there was any case where the respondent was not entitled to the benefit of the law of limitation, the present is that one. The respondent cannot legitimately claim that the amendment will prejudicially affect his right under that law for really he had no such right. It is a case in which the claim for money was in substance in the plaint from the beginning though it had not formally been made.”

¶67

OPC.4238/2011

¶68

: 7 :

¶69

The learned counsel for the petitioners has invited the attention of this Court to the decision in KSEB Vs. C.S. Company [1996 (2) KLT 532], wherein it was held in paragraph 14:

¶70

“Except in exceptional cases leave to amend under 0.6, R. 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations are added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading. In the present case contents of the plaint already set out claim for damages. By amendment the amount of damages is only quantified. Therefore, for the purpose of effective determination of real questions

¶71

OPC.4238/2011

¶72

: 8 :

¶73

involved in the suit amendment should have been granted. Considering the counter suit as well as the written statement I am of the opinion that defendants are not at all taken by surprise by the amendment. On the facts of this case, interest of justice requires mat amendment should be carried out. The amendment is necessary for the purpose of determining the real question in controversy between the parties.”

¶74

The learned counsel for the respondents has

¶75

pointed out that when the plaintiffs had in unequivocal terms limited their claim to ₹2 lakhs, it has to be taken that they have waived their claim for any amount in excess of ₹2 lakhs and, therefore, they cannot be permitted to amend the plaint by incorporating the relief for claiming any higher amount than ₹2 lakhs. The learned counsel for the petitioners has explained that at the time when the suit was filed, there was no document at all to quantify the actual loss and on getting Ext.P7 Commissioner's report, they could quantify the actual loss and, therefore, they wanted to

¶76

OPC.4238/2011

¶77

: 9 :

¶78

increase their claim for damages to ₹4,67,540/-. It is true that still they have not claimed to incorporate any new relief on the basis of any new cause of action. What they are intending to do through the proposed amendment is to expand the relief already sought for on the basis of original cause of action by quantifying the damages correctly on the basis of the subsequent development in the suit, brought out through Ext.P7 Commissioner's report. When they are not introducing a new set of facts in dispute, it cannot be said that the proposed amendment, even if allowed, will in any way prejudice the respondents. As the plaintiffs had limited their claim to ₹2 lakhs by saying that they had sustained severe financial loss to the tune of approximately ₹16.5 lakhs, the same will not confer any right on the respondents, especially when they are disputing even the claim for ₹2 lakhs. If as a matter of fact, they had accepted the claim as such and paid the amount of ₹2 lakhs at the threshold, the position would have been different. Still, the respondents

¶79

OPC.4238/2011

¶80

: 10 :

¶81

are defending the claim on all grounds.

¶82

Considering the facts and circumstances of this

¶83

case and by relying on the decisions noted supra , this Court is of the view that the court below ought to have allowed the amendments sought for. The dismissal of the I.A. has resulted in substantial miscarriage of justice and, therefore, the impugned order has to be set aside.

¶84

In the result, this Original Petition (Civil) is allowed and Ext.P9 is quashed. Ext.P8 application is revived and allowed. The court below shall permit the plaintiffs to carry out the amendment sought for in I.A. No.1423/2008 in O.S. No.192/2008. The court below shall give an opportunity

¶85

to the defendants to file additional written statement, if any.

¶86

Sd/- (B.KEMAL PASHA, JUDGE)

¶87

aks/18/09

¶88

// True Copy //

¶89

PA to Judge

Baby v. St.Andrew'S Forane Church

Case brief

What is this about?

What did the court decide?

Baby v. St.Andrew'S Forane Church

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

State of Kerala Vs K.J.Joseph and Anr.

The Secretary Vs P.v.Chackochan

S.Subramanya Iyer Vs Power Grid Corporation of India Ltd.

Kseboard Vs Thomman Thomas

St.Xavier'S Church Vs K.S.E.B

Lekshmikutty Amma Vs Abdul Majeed