Dismissed

Anilkumar v. Mohan Kumar

Kerala HC17 Jun 2016OP(C)/1410/2016

Case brief

AI extract

What is this about?

This court dismissed a petition challenging the trial court's order rejecting a late application to amend pleadings. The amendment sought a declaration of voidness regarding a subsequent sale, which the court held altered the suit's nature and was barred by lack of diligence since the issue arose in the written statement. Also rejected was reopening of evidence.

What did the court decide?

Original Petition dismissed; disposal of suit to proceed untrammelled by these observations.

Anilkumar Vs Mohan Kumar — Contract and Commercial Disputes | Kerala HC (2016)

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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 K.HARILAL

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FRIDAY, THE 17TH DAY OF JUNE 2016/27TH JYAISHTA, 1938

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OP(C).No. 1410 of 2016 (O)

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OS.NO.31/2011 OF SUB COURT, MAVELIKARA

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PETITIONER/PLAINTIFF :

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ANIL KUMAR

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AGED 41 YEARS, S/O.THARUTHA VALIYATHIL HOUSE, FEROKE COLLEGE P.O. VELIPRAM AMSOM, DESOM, KOZHIKODE DISTRICT.

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BY ADVS.SRI.R.SUDHISH SMT.M.MANJU

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RESPONDENTS/DEFENDANTS :

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1. MOHAN KUMAR AGED 48 YEARS, S/O.KARUNAKARAN THOTTUCHIRAYIL HOUSE, ERUVA MURI, PATHIYOOR VILLAGE, ALAPPUZHA-690 508.

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2. SHEEJA BEEGAM AGED 45 YEARS, W/O.HUMAYOON KABEER PAYIKUZHI KULACHA PEEDIKAYIL OCHIRA VILLAGE, KOLLAM-690526.

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R2 BY ADVS. SRI.K.SHAJ

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SRI.SAJJU S.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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...2/-

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OP(C).No. 1410 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXT. P1	COPY OF THE PLAINT IN OS.31/2011 ON THE FILE OF THE SUB COURT, MAVELIKARA DT.13-1-2011.
EXT. P2	COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT IN OS. 31/2011 ON THE FILE OF THE SUB COURT, MAVELIKARA DT.15-11-13.
EXT. P3	COPY OF THE STATEMENT FILED BY THE 2ND DEFENDANT IN OS 31/2011 ON THE FILE OF THE SUB COURT MAVELIKARA DT.15-11-13.
EXT. P4	COPY OF THE AMENDMENT APPLICATION IA 1464/2014 IN OS 31/2011 BEFORE THE SUB COURT, MAVELIKARA.
EXT. P5	COPY OF THE OBJECTION FILED BY THE 2ND DEFENDANT IN IA 1464/2014 IN OS 31/2011 BEFORE THE SUB COURT, MAVELIKARA.
EXT. P6	COPY OF THE IA.NO. 1434/14 IN OS. 31/2011 ON THE FILE OF THE SUB COURT, MAVELIKARA.
EXT. P7	COPY OF THE ORDER IN IA 1464/14 IN OS 31/2011 OF THE SUB COURT, MAVELIKARA DT.21-11-14.
EXT. P8	COPY OF THE ORDER IN IA 1434/2014 IN OS. 31/2011 OF THE SUB COURT, MAVELIKARA DT.21-11-14.
EXT. P9	COPY OF THE ORDER OF THE ADDITIONAL DISTRICT COURT - I, MAVELIKARA IN IA 318/16 IN CMA 37/14 DT.31-3-16.
EXT. P10	COPY OF THE ORDER OF THE ADDITIONAL DISTRICT COURT I, MAVELIKARA IN IA 319/16 IN CMA 38/16 DT.31-3-16.
EXT. P11	COPY OF THE COMMON ORDER OF THE ADDITIONAL DISTRICT COURT I, MAVELIKARA IN CMA 37/2014 AND CMA 38/14 DT.31-3-16.
RESPONDE	NT(S)' EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE

K. HARILAL, J.

= = = = = = = = = = = = = = = = = = O.P.(C) No. 1410 of 2016

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- - - - - - - -- - - - - - - - - - - - - - Dated this the 17th day of June, 2016

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J U D G M E N T

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The petitioner is the plaintiff in Original

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Suit No.31 of 2011, on the files of Sub Court,

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Mavelikkara as well as in Interlocutory Application Nos.1464 of 2014 and 1434 of 2014 filed therein. The suit was filed for return of advance money paid by the petitioner to the 1^st respondent, on a sale agreement dated 01.07.2009, executed between the petitioner and the 1^st respondent. Originally, the case was filed against the 1^st respondent only and subsequently, the 2^nd respondent was impleaded, as additional 2^nd defendant.

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The Interlocutory Application No.1464 of

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2014 was filed under Order VI Rule 17 of the Code of

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Civil Procedure, 1908 (hereinafter referred to as

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O.P.(C) No. 1410 of 2016

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-: 2 :-

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'the C.P.C.') , seeking amendment to the plaint to

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incorporate a prayer for declaration that the document executed by the 1^st respondent in favour of the 2^nd respondent, by way of sale deed No.1492 of 2010 of Sub Registrar's Office, Kareelakulangara, is null and void. Interlocutory Application No.1434 of 2014 was filed to review the order of posting the suit for final hearing and to reopen evidence. The 2^nd respondent resisted both applications filing objection, contending that the applications are belated, as evidence of the plaintiff and defendant was over and now the case is posted for hearing. It is also contended that the matters sought to be incorporated, by way of amendment would alter the

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nature and character of the suit also. After considering the rival contentions, the court below

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O.P.(C) No. 1410 of 2016

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dismissed both applications, by Exts.P7 and P8

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orders. The legality and correctness of the reasonings, whereby the trial court dismissed those applications, are under challenge in this Original Petition (Civil).

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Heard the learned counsel for the

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petitioner and the learned counsel appearing for the respondents.

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Going by Ext.P7 order, it is seen that the application, seeking amendment was dismissed on the sole reason that the said application was filed, when the evidence stands completed and the case was posted for final hearing and there is no reason for delay in filing the application and no reason has been shown, in the application, for filing the same in a belated stage. In the above view, the question

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O.P.(C) No. 1410 of 2016

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-: 4 :-

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to be considered in this Original Petition (Civil) is, whether the trial court is justified in finding that the application cannot be allowed at the stage

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at which it was filed?

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Admittedly, the plaintiff was examined and

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the 1^st respondent was set ex parte and the 2^nd respondent filed a document and thus the evidence of both parties stood closed and the case was posted for final hearing. Needless to say, the application was filed after the commencement of the trial. If that be so, the first question to be considered is, whether the plaintiff could not have raised the matter before the commencement of trial, despite due diligence? The Original Suit is one for money filed as early in the year 2011. The 2^nd respondent filed written statement on 15^th November,2013, contending

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O.P.(C) No. 1410 of 2016

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-: 5 :-

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that he is a bona fide purchaser, who purchased the

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property from the 1^st respondent, after the expiration of the disputed agreement for sale, under which the petitioner is claiming return of advance money and it is specifically stated that he purchased the property, by virtue of sale deed No.1492 of 2010 of Sub Registry Office, Kareelakulangara from the 1^st respondent. Thus, the 2^nd respondent had raised claim over the property involved in the agreement for sale, as early on 15^th November, 2013, as bona fide purchaser and he furnished the details of the sale which stands in

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his favour. But, the petitioner has not taken any steps to amend the pleadings in the plaint, so as to defend the claim raised by the 2^nd respondent over the property and the present petition is filed only

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O.P.(C) No. 1410 of 2016

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on 17^th November, 2014, after the closing of

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evidence. So, it can be safely concluded that the petitioner was not diligent in prosecuting the case.

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It is pertinent to note that the petitioner

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has no prayer to direct the 1^st respondent, to execute the sale deed in his favour or to get it executed by the court. The suit is a simple suit for money, seeking realisation of money, by imposing charge over the property also and the present

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amendment is sought for a declaration that the sale deed executed by the 1^st respondent, in favour of the 2^nd defendant is null and void. The prayer sought

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to be incorporated by the amendment has no nexus with the earlier prayer and the prayer sought to be incorporated by way of amendment would alter the nature and character of the suit and the same will

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O.P.(C) No. 1410 of 2016

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cause prejudice to the respondents 1 and 2.

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In the above view of the matter, this Court also finds that the petitioner could have raised the matter before the commencement of trial, it he was diligent in prosecuting the case. Needless to say, the petitioner could have sought for an amendment at the time, when he came to know the matter of subsequent sale from the written statement filed by the 2^nd respondent, claiming the right over the property, as a bona fide purchaser, as early on 13^th November, 2013. In view of the embargo provided under the proviso to Order VI Rule 17 of the C.P.C., the trial court is justified in rejecting the application, seeking amendment.

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As far as Ext.P8 is concerned, since the amendment was disallowed, there is no circumstances

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O.P.(C) No. 1410 of 2016

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-: 8 :-

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to reopen the evidence, which stood closed, when the application was heard. I do not find any illegality and impropriety in the impugned order. However, the trial court shall dispose the case, at the earliest, untrammelled any of the observations made by this Court in this judgment.

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This Original Petition (Civil) is dismissed accordingly.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

Anilkumar v. Mohan Kumar

Case brief

What is this about?

What did the court decide?

Anilkumar v. Mohan Kumar

Case brief

What is this about?

What did the court decide?

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