Remanded

Sherifa Beevi v. Salma Beevi

Kerala HC14 Jul 2016OP(C)/1437/2016

Case brief

AI extract

What is this about?

This order challenges the lower court's permission to amend pleadings post-trial commencement. The High Court set aside the order, directing remand for fresh consideration of legal mandates regarding limitation, admissions, and the nature of the suit.

What did the court decide?

The order permitting amendment was set aside, and the matter remitted to the trial court for fresh consideration of interlocutory applications.

Sherifa Beevi Vs Salma Beevi — Civil Procedure and Limitation | 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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THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938

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OP(C).No. 1437 of 2016 (O)

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--------------------------OS. NO.50/1992 OF SUB COURT, KOLLAM.

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PETITIONER:

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SHERIFA BEEVI, WIFE OF LATE M.K.A. HAMEED, AGED 72 YEARS, SHERI LAND, KARIKODU, KOLLAM-5.

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BY ADV. SRI.LEO GEORGE.

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RESPONDENT:

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SALMA BEEVI, VELIYIL VEEDU (KANDANCHALIL), KILIKOLLOOR, KOLLAM-691 001.

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BY ADVS. SRI.ASP.KURUP, SRI.SADCHITH.P.KURUP.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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OP(C).No. 1437 of 2016 (O)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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P1 TRUE COPY OF THE PLAINT IN O.S.50/1992 ON THE FILE OF THE
SUB COURT, KOLLAM DATED 20/01/1992.

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P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE FIRST DEFENDANT IN O.S.50 OF 1992 OF THE SUB COURT, KOLLAM DATED 27/10/1992.

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P3 TRUE COPY OF THE REPLICATION FILED BY THE PLAINTIFF TO THE COUNTER CLAIM RAISED BY THE FIRST DEFENDANT.

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P4 TRUE COPY OF I.A.1488/2015 IN O.S.50 OF 1992 ON THE FILE OF THE SUB COURT, KOLLAM.

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P5 TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT IN OP(CIVIL)NO.1864/2015 DATED 31/07/2015.

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P6 TRUE COPY OF ORDER PASSED BY THE ADDITIONAL SUB COURT, KOLLAM IN I.A.1488/2015 IN O.S.50/1992, DATED 13/08/2015.

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P7 TRUE COPY OF I.A.1967/2015 IN O.S.50/1992 ON THE FILES OF ADDITIONAL SUB COURT, KOLLAM DATED 25/09/2015.

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P8 TRUE COPY OF I.A.1957/2015 IN O.S.50/1992 DATED 25/09/2015. P9 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE FIRST DEFENDANT IN I.A.1967/2015 DATED 06/10/2015.

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P10 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE FIRST DEFENDANT IN I.A.1967/2015 DATED 06/10/2015.

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P11 TRUE COPY OF THE JUDGMENT OF OP(C)2340/2015 OF THIS HONOURABLE CORT DATED 04/01/2016.

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P12 TRUE COPY OF THE COMMON ORDER PASSED IN I.A.1967/2015 AND I.A.1957/2015 IN O.S.50/1992 OF THE ADDITIONAL SUB COURT, KOLLAM DATED 17/02/2016.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

K. HARILAL, J.

= = = = = = = = = = = = = = = = = O.P.(C) No. 1437 of 2016

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- - - - - - -- - - - - - - - - - - - - - Dated this the 14th day of July, 2016

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J U D G M E N T

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The petitioner is the defendant in O.S. No.50

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of 1992, on the files of the Sub Court, Kollam, filed by the respondent herein. The suit is one for declaration of title and possession over plaint 'B' schedule property and for perpetual injunction. This Original Petition (Civil) has been filed, challenging the order passed by the court below in I.A. No.1957 of 2015 and I.A. No.1967 of 2015 in the above Original Suit. The aforesaid Interlocutory Applications were filed under Order VI Rule 17 of the Code of Civil Procedure,1908 (hereinafter referred to as 'the C.P.C.), seeking amendments in replication and plaint, respectively.

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The grievance of the petitioner in this Original Petition (Civil) concerns Ext.P12 order

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O.P.(C) No. 1437 of 2016

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-: 2 :-

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passed by the court below, permitting the respondent

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to amend the plaint as well as replication filed by

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her for the second time, after the commencement of trial. The legality and property of Ext.P12 is 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 respondent.

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The sum and substance of the arguments advanced by the learned counsel for the petitioner is that Ext.P12 order, permitting amendment, as prayed for, was granted after the commencement of

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the trial, contrary to the statutory mandate under the proviso to Order VI Rule 17 of the C.P.C. It is also contended that the amendment, if allowed will take away the admission made by the respondent in

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O.P.(C) No. 1437 of 2016

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-: 3 :-

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his earlier pleadings. Similarly, the matters sought

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to be incorporated by way of amendment are matter within the knowledge of the respondent and she could have raised the matter in the pleadings, before the commencement of the trial. But, the court below miserably failed to consider the aforesaid legal aspects and passed the impugned order in a perfunctory manner.

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Per contra, the learned counsel appearing for the respondent advanced arguments to justify Ext.P12 order. According to him, the amendment will not change the nature and character of the suit and no prejudice will be caused to the petitioner, if the amendment is allowed.

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In view of the above contentions, the question to be considered is, whether the court

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O.P.(C) No. 1437 of 2016

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-: 4 :-

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below is justified in allowing the amendment applications, by Ext.P12 order. It stands admitted by both parties that the aforesaid applications, seeking amendment in the plaint and replication were filed, after appointing an Advocate Commissioner on 15.06.2016 to take evidence. It follows that the applications were filed after the commencement of the trial. If that be so, the crucial question to be considered, after the introduction of the proviso to Order VI Rule 17 of the C.P.C. with effect from 01.07.2002, is that whether the respondent could have raised the matter before the commencement of the trial, despite due diligence.

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Admittedly, the suit was filed in the year 1992 and the written statement was filed in the year 1992 itself. In other words, the amendment was

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O.P.(C) No. 1437 of 2016

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sought for after more than two decades. In the above view of the matter, the court below should have considered the aforesaid question at first; but the court below did not advert to the statutory mandate under the proviso to Order VI Rule 17 of the C.P.C. It follows that the impugned order is liable to be set aside at the threshold and I do so.

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In addition to that, it was incumbent upon the court below to consider the question, whether the amendment would take away the admissions made by the parties in the earlier pleadings and whether the amendment would alter the nature and character of the suit. None of these questions are seen addressed by the court below and the question of limitation also deserves to be considered, while considering the amendment applications.

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O.P.(C) No. 1437 of 2016

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-: 6 :-

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In the above view of the matter, the matter

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is remitted back to the trial court for fresh consideration of the aforesaid Interlocutory Applications in accordance with law, particularly in view of the specific observations made above. The order shall be passed within a period of 'one month' from the date of receipt of a copy of this judgment. This Original Petition (Civil) is disposed of accordingly.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

Sherifa Beevi v. Salma Beevi

Case brief

What is this about?

What did the court decide?

Sherifa Beevi v. Salma Beevi

Case brief

What is this about?

What did the court decide?

What the court decided

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