High Court of Kerala dismissed an original petition challenging the dismissal of an interlocutory application under O.VI.R.17 CPC. The High Court upheld the trial court's order, finding no sufficient cause for the belated amendment.
Original petition dismissed; order of the court below in I.A. No.921/16 upheld.
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 K.HARILAL
FRIDAY, THE 17TH DAY OF JUNE 2016/27TH JYAISHTA, 1938
OP(C).No. 1394 of 2016 (O) --------------------------OS 191/2013 OF MUNSIFF COURT, MAVELIKKARA ....
PETITIONER(S):
OMANAYAMMA, AGED 57, D/O. LAKSHMIAMMA, SREYAS, KADAVOOR, THATTARAMBALAM P.O., KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK, ALAPUZHA DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, D.SASIDHARAN PILLAI, S/O. DAMODHARAN PILLAI, SREYAS, KADAVOOR, THATTARAMBALAM P.O., KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT.
BY ADVS.SRI.V.PHILIP MATHEW SRI.JEPH JOSEPH SRI.BIJU.K. MATHEW WWW
RESPONDENT(S):
1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA-688 001.
2. TAHSILDAR, TALUK OFFICE, MAVELIKKARA, ALAPPUZHA DISTRICT-650 108. 3. VILLAGE OFFICER, KANNAMANGALAM VILLAGE OFFICE, KANNAMANGALAM, ALAPPUZHA DISTRICT-690 101. 4. SECRETARY, CHETTIKULANGARA GRAMA PANCHAYAT, CHETTIKULANGARA P.O., MAVELIKKARA, ALAPPUZHA DISTRICT-690 106.
5. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY-695 001. R1-R3 BY GOVERNMENT PLEADER R4 BY SRI.GEORGE VARGHESE PERUMPALLIKUTTIYIL, SC R5 BY ADV. SRI.D.SREEKUMAR, SC
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
OP(C).No. 1394 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
RESPONDENT(S)' EXHIBITS:
NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
K.HARILAL, J.
O.P.(C). No.1394 of 2016
Dated this the 17th day of June, 2016
JUDGMENT
~ ~ ~ ~ ~
The petitioner is the Power of Attorney Holder of
the plaintiff in O.S. No.191/13 of the Munsiff's Court, Mavelikkara as well as the petitioner in I.A. No.921/16 filed therein. The above suit was one for declaration of the right of easement, by way of prescription, over B schedule pathway. The above interlocutory application was filed under Order VI Rule 17 of the Code of Civil Procedure seeking amendment in the description of the B schedule property. The said application was filed after closing the evidence of the plaintiff and when the case was posted for hearing, According to the petitioner, a clerical mistake was crept at the first two lines in the second paragraph of the plaint and the description of the property and the same has to be corrected by making corresponding amendment in the description of the plaint B schedule
OP(C).1394/16 :2:
pathway and the aforesaid amendment is necessary for the proper adjudication of the question in controversy involved in the suit.
allowed, would alter the nature and lie of the B schedule pathway and the same would be prejudicial to the case of the defendants.
OP(C).1394/16 :3:
trial. Secondly, the basis or reason for which the amendment was sought for, in a belated stage of the case, was not disclosed in the application seeking amendment. Thirdly, the proposed amendment is not necessary for the purpose of determining the real question in controversy involved in the suit. The legality and correctness of the aforesaid reasons, whereby the trial court dismissed the application, are under challenge in this original petition.
OP(C).1394/16 :4:
was posted for final hearing. The suit is one filed as early in the year 2013 and along with the suit an Advocate Commissioner was appointed to ascertain the nature and lie of the B schedule pathway and the Commissioner had filed a report stating the nature and lie of the B schedule pathway. As per the proviso to Order VI Rule 17 of the C.P.C. which was brought into statute by way of amendment with effect from 1.7.2001, in an application seeking amendment of the pleadings after the commencement of the trial, it is obligatory on the part of the court to consider the question whether the proposed amendment could not have been made before the commencement of trial, in spite of due diligence.
OP(C).1394/16 :5:
that the case was being conducted by the Power of Attorney Holder. In the absence of any evidence to show that she was laid up and unable to travel to meet the lawyer, the court below can be justified in finding that the petitioner failed to establish the reasons for delay.
OP(C).1394/16 :6:
by the court below, this Court finds that the court below is justified in finding that the petitioner failed to prove that in spite of due diligence she could not have raised the proposed amendment before the commencement of trial. In the absence of sufficient cause for delay, it could be reasonably presumed that the amendment is intended to circumvent the evidence against the petitioner, which was brought out by cross examining the petitioner and his witnesses, by the defendants. Therefore, after eliciting evidence from the petitioner and her witnesses against her case, amendment cannot be allowed to destroy such evidence collected by the respondents/defendants. I do not find any kind of illegality or impropriety in the order under challenge.
In the result, this original petition is dismissed.
K. HARILAL, JUDGE
okb/21.6
2 issues framed by the court
Whether the trial court committed illegality or impropriety in dismissing an application for amendment of plaint filed after commencement of trial.
Whether the petitioner proved that the proposed amendment could not have been made before the commencement of trial despite due diligence.
Colour shows how this judgement treated each authority
nullReferred¶46
1 provisions across 1 enactments
Omanayamma
State of Kerala
Tahsildar, Taluk Office, Mavelikkara
Village Officer, Kannamangalam
Secretary, Chettikulangara Grama Panchayat
Travancore Devaswom Board
K.HARILAL
K. HARILAL, JUDGE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
