Quashed

Benny Jacob v. K.K.Purushothaman

Kerala HC7 Sept 2016OP(C)/4385/2013

Case brief

AI extract

What is this about?

The High Court of Kerala quashed the lower court's order allowing an amendment in a plaint under Order VI Rule 17 CPC. The amendment sought to change property descriptions and withdraw prior admissions, thereby altering the suit's subject matter. Relying on an apex court precedent, the court held such amendments impermissible.

What did the court decide?

The order passed by the lower court in I.A. No.1244/2013 allowing the amendment to the plaint is quashed.

Benny Jacob Vs K.K.Purushothaman — Specific Performance | 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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WEDNESDAY, THE 7TH DAY OF SEPTEMBER 2016/16TH BHADRA, 1938

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OP(C).No. 4385 of 2013 (O)

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(IA 1244/13 IN OS 48/13 DTD. 30.10.13 OF SUB COURT, PALA)

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PETITIONER(S):

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BENNY JACOB, AGED 48 YEARS, S/O.CHACKO, PUTHIYIDATHU CHALIL, PIZHAKU KARA, RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

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BY ADVS.SRI.M.NARENDRA KUMAR SRI.V.S.ANUMON

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RESPONDENT(S):

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K.K.PURUSHOTHAMAN, S/O.KUNJAN, KOTTAPADATHU HOUSE, PIZHAKU KARA, RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT-686589.

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BY ADV. SMT.NIDHI BALACHANDRAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 4385 of 2013 (O)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1- TRUE COPY OF THE PLAINT IN OS 48/13 OF SUB COURT, PALA

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EXT.P2- TRUE COPY OF THE AGREEMENT DT.2.3.2012

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EXT.P3- TRUE COPY OF THE WRITTEN STATEMENT IN OS 48/13 IN SUB COURT,PALA

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EXT.P4- TRUE COPY OF THE AFFIDAVIT ALONG WITH WRITTEN STATEMENT FILED BY THE PETITIONER DT.1.3.2012

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EXT.P5- TRUE COPY OF THE AFFIDAVIT ALONG WITH WRITTEN STATEMENT FILED BY THE PETITIONER DT.17.3.2012

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EXT.P6- TRUE COPY OF IA 934/13 DT.27.5.13 IN COMMISSION APPLICATION

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EXT..P7- TRUE COPY OF THE AMENDMENT APPLICATION IN IA 1244/13 DT.23.7.13

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EXT.P8- TRUE COPY OF THE OBJECTIONS TO IA 1244/13

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EXT.P9- TRUE COPY OF THE ORDER DT.30.10.13 IN IA 1244/13

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RESPONDENT'S EXHIBITS: NIL

OKB

TRUE COPY

P.A. TO JUDGE

K.HARILAL, J.

O.P.(C). No.4385 of 2013

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Dated this the 7^th day of September, 2016

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JUDGMENT

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The petitioner is the defendant in O.S.No.48/2012 on the files of the Sub Court, Pala and he filed this original petition challenging the order passed by the court below in I.A. No.1244/2013 filed in the aforesaid original suit under Order VI Rule 17 of the Code of Civil Procedure. The suit is one for specific performance of the agreement dated 02.03.2012 alleged to have been executed between the plaintiff and the defendant by which the defendant had agreed to reconstruct a building allegedly demolished by him and situated in plaint item No.1. Item No.1 belongs to the plaintiff and item No.2 belongs to the defendant. But the plaintiff has sought for an amendment so as to make it appear that some portion of item No.1 is also included in item No.2. The defendant resisted the said

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O.P.(C).4385/13-O :2:

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application seeking amendment contending that the amendment is intended to withdraw the admissions in the plaint and the matters sought to be incorporated by way of amendment will change the subject matter of the suit itself. After considering the rival pleas, the court below passed the impugned order allowing the said application seeking amendment.

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Heard the learned counsel for the petitioner and the learned counsel for the respondent.

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Apparently, it appears that the impugned order has been passed without application of mind. Even though, the petitioner has specifically contended that the matters sought to be incorporated by way of amendment will change the subject matter of the suit and the amendment is intended to withdraw the admissions in the plaint, the court below has not adverted to the aforesaid issues. As rightly contended by the learned counsel for the petitioner, going by the schedule of the plaint, wherein the plaintiff's property is scheduled as item No.1 and the

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O.P.(C).4385/13-O :3:

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defendant's property is scheduled as item No.2, it could be seen that both the properties are lying separately with clear boundaries. Similarly, according to the plaint schedule, the plaintiff has no property in Block No.29, Sy.No.52/1. But now, the respondent/plaintiff wants to make an amendment in such a way as to establish that the plaintiff is also having property in block No.29, Sy.No.52/1. Similarly, the respondent/plaintiff wants to make amendment in the northern boundary of the plaint schedule item No.2, so as to make it appear that he also has some property on the northern side of the defendant's property. Obviously, the amendment is intended to make changes in the description of the property. But, as rightly contended by the learned counsel for the petitioner, it will change the subject matter of the suit. Therefore, this court is inclined to accept the said argument.

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Going by the affidavit filed along with the application seeking amendment, it is the case of the

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O.P.(C).4385/13-O :4:

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petitioner that he came to know the mistake crept in the re-survey numbers after filing the suit and the amendment is sought for, in view of the re-survey record. But, no documents had been produced to show the particulars of re-survey plan. That apart, going by the commission application, it is seen that the said application is filed, on the basis of the description of the property, in the original plaint. To sum up, the matters sought to be ascertained in the commission application are not in consonance with the matters introduced by way of amendment by the impugned order.

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Similarly, according to plaint averments and descriptions of the properties in the schedule, both the properties are lying separately within separate boundaries. But now the impugned order permitted the respondent to withdraw from the admission, in the pleadings and allowed him to raise a claim of right, in item No.2 also. The legal position well settled by the Apex Court in Ram Niranjan Kajaria and Another v.

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O.P.(C).4385/13-O :5:

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Sheo Prakash Kajaria and Others [2015 KHC 4631 (SC)] is that the pleadings or admissions cannot be allowed to be withdrawn by way of amendment. The court below miserably failed to comprehend the impact of the amendment, which was allowed by the impugned order. In the above view of the matter, Ext.P9 order passed by the court below is liable to be quashed and I do so. This judgment will not stand in the way of seeking amendment on the basis of the commission report.

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This original petition is disposed of accordingly.

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Sd/K.HARILAL, Judge.

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okb

Benny Jacob v. K.K.Purushothaman

Case brief

What is this about?

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Benny Jacob v. K.K.Purushothaman

Case brief

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