Allowed

M/S. Comfort Polymers v. V.P. Janeesha

Kerala HC1 Jul 2016OP(C)/1404/2016

Case brief

AI extract

What is this about?

Held an original petition challenging the high court of kerala court below order directing amendment, the court held that trial court should have granted opportunity to amend relief portion to incorporate specific performance prayer. Petitioners given two months to seek amendment.

What did the court decide?

Petitioners given two months to file application seeking amendment to relief portion to incorporate prayer for specific performance of agreement.

M/S. Comfort Polymers Vs V.P. Janeesha — Contract and Commercial Disputes | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL

¶4

MONDAY, THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938

¶5

OP(C).No. 1404 of 2016 (O)

¶6

--------------------------OS. NO.515/2013 OF ADDL. MUNSIFF COURT-II, KOZHIKODE.

¶7

PETITIONERS/PETITIONERS/PLAINTIFFS 1 TO 4:

¶8

1. M/S. COMFORT POLYMERS, DOOR NO.6/469, FAROOK COLLEGE ROAD, FAROOK COLLEGE P O, KOZHIKODE , REP. BY ITS MANAGING PARTNER,

¶9

P. KHYRUNEEZA, AGED 48 YEARS, D/O.HYDROSE, GRACE VALLEY, KOLATHARA P.O., CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK.

¶10

2. C.P. FASMIYA, AGED 23 YEARS, D/O.C.P. ABOOBACKER, 24/2133 B, C.P. HOUSE, THEKKETHADATHIL PARAMBA, MANKAVE P.O., VALAYANAD AMSOM DESOM, KOZHIKODE TALUK, PARTNER, M/S.COMFORT POLYMERS.

¶11

3. P. KHYRUNEEZA, AGED 48 YEARS, D/O.HYDROSE, GRACE VALLEY, KOLATHARA P.O, CHERUVANNUR AMSOM DESO.M, KOZHIKODE TALUK,

¶12

PARTNER, M/S.COMFORT POLYMERS.

¶13

4. C.P. ABEENS RASEENS,

¶14

AGED 27 YEARS, D/O.C.P. ABOOVACKER, 24/2133 B, C.P. HOUSE, THEKKETHADATHIL PARAMBA, MANKAVE P.O., VALAYANAD AMSOM DESOM, KOZHIKODE TALUK, PARTNER, M/S.COMFORT POLYMERS.

¶15

BY ADVS.SRI.NIRMAL. S.,

¶16

SMT.VEENA HARI.

¶17

RESPONDENTS/RESPONDENTS/DEFENDANTS 1 TO 4:

¶18

1. V.P. JANEESHA, D/O.V.P. ABDUSAMAD, AGED 34 YEARS, PATHAYAPARAMBIL HOUSE, KOLATHARA P.O., CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK.

¶19

OP(C).No. 1404 of 2016 (O)

¶20

2. E. SAMEENA, D/O.MUHAMMED KOYA, AGED 37 YEARS, P.P.S. PARAKANDI PARAMBA, KOLATHARA P.O., CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK.

¶21

3. K.P. SABITHA, D/O.K.P. MOIDEENKUTTY, AGED 31 YEARS, PATHAYAPARAMBIL HOUSE, KOLATHARA P.O., CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK.

¶22

4. MANAGER, STATE BANK OF INDIA, KALLAI ROAD BRANCH, KOZHIKODE-673 003.

¶23

R4 BY ADV. SMT.S.AMBILY, SC.

¶24

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶25

rs.

¶26

OP(C).No. 1404 of 2016 (O)

¶27

APPENDIX

¶28

PETITIONER'S EXHIBITS:-

¶29

P1 TRUE COPY OF THE PLAINT IN OS NO. 515/2013 OF MUNSIFF COURT-II, KOZHIKODE DATED 30/07/2013.

¶30

P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO.515/2013 FILED BY DEFENDANT 1 TO 3 DATED 18/10/2013 BEFORE MUNSIFF COURT-II.

¶31

P3 TRUE COPY OF THE AMENDED PLAINT OS NO.515/2013 DATED 30/07/2013 FILED BEFORE MUNSIFF COURT-II, KOZHIKODE.

¶32

P4 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 TO 3 IN O.S.515/2013 BEFORE THE MUNSIFF COURT-II.

¶33

P5 TRUE COPY OF THE AFFIDAVIT SUPPORTING IA.364/2016 IN O.S.515/2013 DATED 20/01/2016.

¶34

P6 TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A. NO.364/2016 IN O.S. NO.515/2013 DATED 05/02/2016.

¶35

P7 TRUE COPY OF THE ORDER IN OS NO.515/2013 DTD 12/04/2016 OF ADDITIONAL MUNSIFF COURT-II, KOZHIKODE.

¶36

RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

K.HARILAL, J.

O.P.(C). No.1404 of 2016

¶42

Dated this the 1^st day of July, 2016

¶43

JUDGMENT

¶44

~ ~ ~ ~ ~

¶45

The petitioners are the plaintiffs in O.S.No.515/2013 pending before the Additional Munsiff's Court-II, Kozhikode. The said suit was initially filed seeking the relief of mandatory injunction directing defendants No.1 to 3 to execute and return the Retirement Deed and also to direct the 4^th defendant

¶46

to resume the operation of the plaintiffs' firm's account. Later, the plaintiffs filed I.A.No.2228/2015 in the suit under Order IV Rule 17 of the Code of Civil Procedure seeking declaration that plaintiffs No.2 to 4 are the only partners of the 1^st plaintiff firm from 01/02/2012. Another prayer was also incorporated seeking a perpetual prohibitory injunction restraining defendants No.1 to 3 from interfering with the business and functioning of the 1^st plaintiff firm.

¶47

OP(C).1404/16-O :2:

¶48

The aforesaid I.A. was allowed and the amendments were carried out.

¶49

Thereafter, the defendants in the suit filed I.A.No.364/2016 to hear issue Nos.6 and 7 as preliminary issues, on the basis of a contention that, on amendment of the plaint, the plaintiffs have not incorporated the correct court fee and if the correct valuation was shown, the court could not have jurisdiction to try the suit.

¶50

After considering the objections filed by the petitioners, the court below arrived at a conclusion that the present valuation of the suit relating to declaration and consequent court fee paid by the petitioners are incorrect. The plaintiffs are directed to amend the plaint to show the valuation for the purpose of jurisdiction for the relief of declaration at Rs.68,37,261/- and to amend the court fee portion accordingly. The legality and propriety of the above direction are under challenge in this Original Petition.

¶51

Heard the learned counsel for the petitioners

¶52

OP(C).1404/16-O :3:

¶53

and the learned counsel appearing for the respondents.

¶54

Though this Original Petition (Civil) has been

¶55

filed on several grounds challenging the merits of the impugned order, the learned counsel for the petitioners mainly confined her arguments to the point that the petitioners are directed to amend the valuation portion only when the real relief ought to be asked in the plaint was specific performance of the agreement. The learned counsel further submits that the plaintiffs are ready and willing to amend the valuation portion and to pay the court fee accordingly; but, they must be allowed to incorporate the relief of specific performance also. But, the court below directed to amend the valuation and pay court fee accordingly, without granting the right and providing an opportunity to make amendment to the relief portion also in accordance with the valuation. Put it differently, the valuation is not in consonance with the relief sought for at present in the plaint. Valuation can be made and court fee can be paid accordingly in

¶56

OP(C).1404/16-O :4:

¶57

consonance with the relief sought for in the plaint. But, the court below omitted to take note of the absence of the relief of specific performance of the agreement in the plaint.

¶58

In view of the submissions made at the Bar, the short question that arises for consideration is, whether there is any illegality in directing the petitioners/plaintiffs to amend the valuation and pay court fee only, without a prayer for specific performance.

¶59

Going by the impugned order, it is seen that the court below specifically observed that a bare perusal of the pleadings would go to show that even if the case of the plaintiffs is accepted, the relief ought to be asked was specific performance of the agreement for executing a retirement deed. Instead, at the first instance, the plaintiffs filed a suit for mandatory injunction. It is clear that in order to avoid payment of court fee, they filed a suit for mandatory injunction, instead of specific performance. However,

¶60

OP(C).1404/16-O :5:

¶61

subsequently, the plaintiffs amended the plaint for deleting the relief for mandatory injunction and to incorporate the relief of declaration that plaintiffs No.2 to 4 alone are the partners of the first plaintiff firm. Even though the court below has made such a specific observation, that the relief ought to be asked was specific performance of the agreement, they are directed to amend the valuation and to pay court fee accordingly only. The court below ought to have granted an opportunity to amend the relief portion also, in view of the aforesaid specific observation.

¶62

The learned counsel for the petitioners submitted that they may be given an opportunity to amend the relief portion also so as to incorporate the relief of specific performance of the agreement. In view of the observations made by the court below, the said prayer appears to be just and proper and the petitioners can be given an opportunity to amend the plaint in consonance with the specific observations made by the court below and stand affirmed by this

¶63

OP(C).1404/16-O :6:

¶64

Court.

¶65

In the above view of the matter, in addition to the direction issued by the trial court in the impugned order, the petitioners are given an opportunity to seek amendment in the relief portion also, in view of the observation made by the trial court and stand affirmed by this judgment. Consequently, the petitioners shall file an application seeking amendment to the relief portion of the plaint so as to incorporate prayer for specific performance of the agreement within a period of two months from today. In that event, the trial court shall allow the application, in view of the observation already made by the trial court and proceed accordingly. In the event of failure, this impugned order will stand in force as such.

¶66

This original petition is disposed of accordingly.

¶67

Sd/K. HARILAL, JUDGE

¶68

okb/2/7

M/S. Comfort Polymers v. V.P. Janeesha

Case brief

What is this about?

What did the court decide?

M/S. Comfort Polymers v. V.P. Janeesha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rajagopal.T Vs Kotak Mahindra Prima Ltd.

Alli Vs Jayaraman

Asuma Beevi Vs T.K. Sreedharan

Shaji Vs Nizarudeen

Muhammed K.V. Vs M.P. Ajithkumar

Vazhamthodi Saidalavi Vs Thayyil Ramla