Allowed

P.V. Sobhana v. K.C. Mineesh

Kerala HC13 Oct 2016OP(C)/1547/2016

Case brief

AI extract

What is this about?

In an original civil petition, the High Court of Kerala allowed an amendment to the plaint filed by the plaintiff in an ongoing suit regarding property dispute. The court held that the amendment, which added new reliefs due to events during pendency, was necessary to avoid multiplicity of suits and was not barred by res judicata.

What did the court decide?

The petition under Article 227 and appellant's application for amendment of plaint IA No.3595/2015 were allowed. Petitioner given two weeks to amend pleadings with respondent's opportunity to file add

P.V. Sobhana Vs K.C. Mineesh — Property and Title | 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.RAMAKRISHNAN

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THURSDAY, THE 13TH DAY OF OCTOBER 2016/21ST ASWINA, 1938

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OP(C).No. 1547 of 2016 (O)

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I.A.NO. 3595/2015 IN O.S.NO. 74/2015 OF ADDITIONAL MUNSIFF'S COURT, KANNUR

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PETITIONER(S)/PLAINTIFF :

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P.V. SOBHANA, AGED 61 YEARS,

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D/O.LATE KUNHIRAMAN NAIR, RESIDING AT “RAM”, NEAR KADALAYI TEMPLE, CHIRAKKAL (P.O), KANNUR, PIN: 670 011.

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BY ADVS. SRI.P.U.SHAILAJAN SMT.D.N.NISHANI

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RESPONDENT(S)/DEFENDANTS :

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1. K.C.MINEESH, AGED 43 YEARS, S/O.MAVILAKANDY NARAYANAN, RESIDING AT MAVILAKANDY HOUSE, NEAR RAMLAL COMPOUND, CHIRAKKAL (P.O), KANNUR 670 011.

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2. P.MADHURI, AGED 41 YEARS, W/O.SUDHEENDRAN.V, PROPRIETOR OF SUDHI METAL CRAFTS, RAMLAL COMPOUND P.O., CHIRAKKAL, KANNUR 670 001.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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OP(C).No. 1547 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S NO.74/2015 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KANNUR. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT IN O.S NO.74/2015. EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE PETITION TO AMEND THE PLAINT (I.A NO.3595/2015) IN O.S NO.74/2015. EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 1ST RESPONDENT IN I.A NO.3595/2015 IN O.S NO.74/2015. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 07/04/2016 IN I.A NO.3595/2015 IN O.S NO.74/2015 OF THE ADDITIONAL MUNSIFF'S COURT, KANNUR.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.S.TO JUDGE.

Msd.

K.RAMAKRISHNAN, J.

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O.P. (C). No.1547 of 2016

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=======================

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Dated this the 13^th day of October, 2016

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JUDGMENT

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This petition has been filed by the petitioner rejecting the application for amendment under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner is the plaintiff in O.S.74 of 2015 on the file of the Additional Munsiff's Court, Kannur. Plaintiff filed Ext.P1 suit against the respondents for mandatory injunction directing the 1^st defendant to restore B schedule property to its original position and also for injunction restraining them from removing soil abetting A schedule building or committing any illegal act or mischief. The case of the petitioner in the plaint was that he is the owner of the plaint A schedule building and respondent is having property on the southern side of the plaint schedule property. If they have removed mud from their property, using JCB and thereby caused damage to a portion of the A schedule property which is shown as B schedule in the plaint. Since the defendant had illegally removed soil abetting the

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O.P. (C). No.1547 of 2016 -2-

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A schedule building, the petitioner filed a suit on behalf of the other co-owner also for mandatory injunction directing the 1^st respondent to restore the B schedule property to its original position and also for consequential prohibitory injunction. The respondent filed Ext.P2 written statement contending that present suit is barred by principles of res judicata and plaintiff is not entitled to file a fresh suit on the same subject matter. They also denied the allegations of trespass and they denied the title of the plaintiff over the plaint A schedule property. The present suit has been filed suppressing the earlier suit. The petitioner filed Ext.P3 application for amendment of the plaint stating that after the institution of the suit, further destruction has been caused by demolishing some portion of the building and that has to be included as C schedule and also for recovery of possession on the strength of title as well including C schedule property and also adding a prayer for recovery of possession of C schedule property from the possession of the 1^st respondent. The respondents filed Ext.P4 counter denying the allegations and also stated that the interim mandatory injunction filed by the petitioner as IA.565 of 2015 was dismissed and the same was taken in appeal as CMA 2 of 2015 before Sub Court Kannur, but later it was withdrawn and

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the petitioner is not entitled to get the reliefs claimed. So she prayed for dismissal of the application. Court below after hearing both sides, by Ext.P5 order dismissed the application stating that it will change the nature of the suit and it will cause prejudice to the respondent. Aggrieved by the same, the present appeal has been filed.

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Though notice was served on the respondent they did

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not appear. Heard Shri. P.U Shailajan, counsel appearing for the petitioner.

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The counsel for the petitioner submitted that the earlier suit was filed originally for mandatory injunction direction the 1^st respondent to restore plaint B Schedule property to its original position as they have illegally removed soil from the plaint B schedule property which is part of the plaint A schedule property. During the pendency of the proceedings, the illegal act continued

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and a portion of the building was also demolished on account of the illegal act. So the petitioner filed application for amendment in order to avoid multiplicity of suit between the parties in respect of the same subject matter. But the court below had dismissed the application which is not correct according to the learned counsel.

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It is an admitted fact that the petitioner herein as

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O.P. (C). No.1547 of 2016 -4-

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plaintiff filed Ext.P1 suit as O.S.74 of 2015 before Munsiff Court Kannur for mandatory injunction directing the 1^st defendant to restore plaint B schedule property to its original position, as the illegal act of the defendant has caused loss of lateral support of the building which belongs to the plaintiff and also for injunction restraining the 1^st defendant from further trespassing in to the plaint A schedule property and removing further soil. It is true that the petitioner also filed an application for interim mandatory injunction, but that was dismissed by the court below. Though an appeal has been filed as CMA 2 of 2015 that was also later withdrawn. According to the plaintiff, the petitioner herein during the pendency of the proceedings, the illegal act of the 1^st defendant continued and on account of further removal of soil, demolished a portion of the building in plaint A schedule and taken away the materials that prompted the petitioner to file the application for amendment seeking incorporation of plaint C schedule demolished portion of the building which has been removed and also prayer for mandatory injunction directing the 1^st defendant to restore C schedule property to its original position after demolishing the compound wall, later constructed to and also in the alternate for recovery of possession of plaint C schedule

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from the possession of the 1^st defendant on the strength of plaintiff

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title and also to pay a compensation of Rs.90,000/-. These allegations were denied by the respondents and the court below dismissed the application on two grounds. One is that new prayer has been added and the other is that it changes the nature of the suit. It may be mentioned here that the averments that has been made by the petitioner in the amendment application has happened during pendency of the proceedings. It is true that it may give rise to a separate cause of action for her to file a fresh suit. But it will only prolong the proceedings. Further, the purpose of amendment itself is to avoid multiplicity of the suit and application for amendment has to be considered liberally so as to advance justice between the parties and to avoid multiplicity of proceedings between the parties in respect of the same subject matter. Since the cause of action has arisen for the petitioner during the pendency of the proceedings, it cannot be said that she could have added these reliefs at the time when the suit was filed. Proviso to Order 6 Rule 17 is not applicable here as trial of the suit has not been started so far. Further it will only advance justice to both the parties and they need not be mulcted with the burden of conducting several suits in respect of the same subject matter causing unnecessary expenses and wastage of time for the parties as well. The question as to whether the present suit is

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barred by resjudicata etc can be considered at the time of trial. No prejudice also will be caused to the respondents if this amendment is added as they will be getting an opportunity to file additional written statement. So under such circumstances, the reasonings given by the court below for dismissing the application for amendment is unsustainable in law and the same is liable to be set aside.

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So the petition is allowed and the application for amendment filed by the petitioner as IA.No.3595/2015 in OS.No.74/2015 is allowed and the petitioner is permitted to carry out the amendment within two weeks from today. The court below is directed to give an opportunity to the respondents to file additional written statement and also give opportunity to the parties to take out commission, if any required for the purpose of proving their cases on the basis of the amended pleadings.

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With the above directions and observations, this petition is allowed and disposed of. Registry is directed to communicate a copy of this judgment to the court below at the earliest.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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SKV & cl

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O.P. (C). No.1547 of 2016 -7-

P.V. Sobhana v. K.C. Mineesh

Case brief

What is this about?

What did the court decide?

P.V. Sobhana v. K.C. Mineesh

Case brief

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