The Court dismissed an Original Petition challenging an order allowing an amendment to incorporate a claim for mandatory injunction. The Court held the amendment was permissible as it represented an additional approach to existing pleadings without introducing new facts, even if the relief was time-barred.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
TUESDAY, THE 18TH DAY OF AUGUST 2015/27TH SRAVANA, 1937
OP(C).No. 1167 of 2015 (O)
I.A.NO.457/2015 IN O.S.NO.50/2011 ON THE FILES OF THE MUNSIFF’S COURT, TALIPARAMBA
PETITIONERS/RESPONDENTS/DEFENDANTS:
1. K. PADMANABHAN, AGED 70 YEARS, S/O RAMAN, SREEJA NIVAS, TRICHAMBARAM, TALIPARAMBA P.O, TALIPARAMBA AMSOM.
2. T. THANKAMANI, AGED 54 YEARS, W/O PADMANABHAN, TRICHAMBARAM , TALIPARAMBA P.O., TALIPARAMBA AMSOM.
BY ADVS.SRI.MATHEW KURIAKOSE SRI.G.GIREESH
RESPONDENT/PETITIONER/PLAINTIFF:
KANHIRAKANDI NARAYANAN, AGED 66 YEARS, S/O KANNAN, 'DEEPADARSHANA', TRICHAMBARAM, TALIPARAMBA P.O, TALIPARAMBA AMSOM, KANNUR DISTRICT, PIN-670 141
BY ADV. SRI.V.A.SATHEESH
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18-08-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DSV/24/8/15
OP(C).No. 1167 of 2015 (O)
APPENDIX
PETITIONERS’ EXHIBITS :
EXT.P1 COPY OF THE PLAINT IN O.S.NO 50 OF 2011 ON THE FILES OF THE MUNSIFF’S COURT , TALIPARAMBA.
EXT.P2 COPY OF THE AFFIDAVIT IN I.A.NO.457 OF 2015 IN O.S.NO. 50 OF 2011 ON THE FILES OF THE MUNSIFF'S COURT, TALIPARAMBA.
EXT.P3 COPY OF THE ORDER DATED 23.02.2015 IN I.A.NO.457 OF 2015 IN O.S.NO. 50 OF 2011 ON THE FILES OF THE MUNSIFF'S COURT, TALIPARAMBA.
RESPONDENT’S EXHIBITS :
NIL
// True Copy //
P.A. To Judge
DSV/24/8/15
B.KEMAL PASHA, J.
==================== O.P.(C). No.1167 of 2015
=====================
Dated this the 18th day of August, 2015
J U D G M E N T
A suit for injunction was filed claiming right over a pathway. It was not precisely pleaded as to what exactly was the right that was claimed. The fact that, the pathway was being used by the plaintiff and the predecessors in interest of the plaintiff for more than 50 years, had already been pleaded. In order to clarify the nature of the right, an amendment for incorporating the plea of the claim by way of easement by prescription was sought for.
O.P.(C). No.1167 of 2015 2
out that earlier an amendment was sought for and in that
O.P.(C). No.1167 of 2015 3
amendment application also, the present relief sought for was not incorporated. Going by the decisions in Pirgonda Hongonda Patil v. Kalgonda Shidgonda [ AIR 1957 SC 363 ] and L.J.Leach and Co. Ltd. and Another v. Messrs.Jardine Skinner and Co. [ AIR 1957 SC 357 ] followed by A.K.Gupta and Sons Ltd. v. Damodar Valley Corporation [ AIR 1967 SC 96 ] , it has to be noted that even in a case wherein a fresh suit in respect of the relief sought to be incorporated would be barred by limitation as on the date of the amendment, such amendments can be allowed in cases wherein the plaintiff is attempting to make an additional approach based on the existing facts pleaded in the plaint by incorporating a new relief.
O.P.(C). No.1167 of 2015 4
facts, even if a fresh suit for the said relief as on date of amendment would be barred by limitation, such an amendment can be allowed, if the same is required to settle the matters in controversy in the suit.
O.P.(C). No.1167 of 2015 5
date of amendment, the amendment sought for cannot be denied, since it is only an additional approach made by the plaintiff on the existing pleadings in the plaint.
there is nothing to interfere with Exhibit P3 order passed by the court below.
In the result, this Original Petition (Civil) is dismissed.
Sd/-
B.KEMAL PASHA JUDGE
DSV/18/8/15
2 issues framed by the court
Whether an amendment to incorporate a claim for mandatory injunction, despite being time-barred, is maintainable if it represents an additional approach to existing facts without introducing new facts
Whether paragraph 5A in the amendment application introduces new facts that would warrant denial of the amendment.
Colour shows how this judgement treated each authority
Pirgonda Hongonda Patil v. Kalgonda ShidgondaExplained¶39
AIR 1957 SC 363 · Who else cites this
L.J.Leach and Co. Ltd. and Another v. Messrs.Jardine Skinner and Co.Explained¶39
AIR 1957 SC 357 · Who else cites this
A.K.Gupta and Sons Ltd. v. Damodar Valley CorporationExplained¶39
AIR 1967 SC 96 · Who else cites this
K. PADMANABHAN and ANR
KANHIRAKANDI NARAYANAN
B.KEMAL PASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
