Petitioner challenged the trial court's order allowing amendment of written statement. High Court set aside order citing precedent on amendment, directing expedited trial completion.
Order impugned set aside; petitioner's original petition allowed; trial court directed to expedite disposal before summer vacation.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY, THE 15TH DAY OF DECEMBER 2017/24TH AGRAHAYANA, 1939
OP(C).No. 1079 of 2017 (O)
(AGAINST ORDER IN IA NO.474/17 IN OS NO.266/12 OF MUNSIFF'S COURT, THODUPUZHA)
PETITIONER(S):
JYOTHI NIVAS JYOTHI SUPER BAZAR THODUPUZHA, REPRESENTED BY ITS MONASTERY FR.JOSEPH KULAKATTU.
BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY
RESPONDENT(S):
SABUR ALIKHAN S/O.ABDUL KADHAR, MUNDAKAL HOUSE, KARIKODE KARA & VILLAGE.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 1079 of 2017 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
----------------------EXHIBIT P1 COPY OF THE PLAINT IN O.S.NO.266/2012 ON THE FILES OF THE MUNSIFF'S COURT, THODUPUZHA.
EXHIBIT P2 COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT. EXHIBIT P3 COPY OF THE JUDGMENT IN OP(C)NO.3254/2016 PASSED BY THIS HON'BLE COURT. EXHIBIT P4 COPY OF THE APPLICATION AND THE ACCOMPANYING AFFIDAVIT IN I.A.NO.474/2017.
EXHIBIT P5 COPY OF THE OBJECTION FILED BY THE PETITIONER.
EXHIBIT P6 COPY OF THE ORDER DATED 10-3-2017 IN I.A.NO.474/2017 IN O.S.NO.266/2012 OF THE MUNSIFF COURT, THODUPUZHA.
RESPONDENT(S)' EXHIBITS
NIL
//TRUE COPY//
PS TO JUDGE.
jg-22/12
ASHOK MENON, J. -----------------------------------OP(C) No.1079 of 2017
Dated this the 15th day of December, 2017
J U D G M E N T
This petition is filed challenging Ext.P6 order in IA No.474/2017 in OS No.266/2012 on the file of Munsiff's Court, Thodupuzha dated 10.03.2017 allowing an application for amendment of the written statement. The suit is of the year 2012 and it appears that the respondent/defendant has been resorting to dilatory tactics to protract litigation. It appears that the defendant was a habit of absenting himself whenever the suit was taken up for trial and then, getting the ex parte decree set aside, later. Once when an application (IA No.1502/2015) to set aside the ex parte
decree was allowed by the trial court, that order was challenged before this Court and this Court vide judgment at Ext.P3, had specifically directed that the lower court shall expedite disposal of the case, at any rate, before the court closes for mid-summer vacation and with that direction, that petition was dismissed in limine. Thereafter, when the suit was listed for trial on 2.3.2017,
OP(C)1079/17.
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the defendant filed application for amendment of the written statement, wherein he had taken a diametrically opposite stand taken by him in the original written statement. However, the court below was pleased to allow the amendment application considering
that it was necessary for determination of the question of controversy between the parties and cost was also imposed while allowing the application. The plaintiff is aggrieved by that order and has approached this Court seeking redressal of grievances under Article 227 of the Constitution of India.
amendment of written statement by substituting certain paragraphs and introducing entirely different new case seeking to displace the plaintiff completely from the admissions made by the defendant in
OP(C)1079/17.
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the written statement has to be rejected. Following the aforesaid decision, this Court has in Girish v. Janaki [2014(1) KLT SN 38 (Case No.51)] held that explanation or clarification can be made regarding the admission, but the effect of such clarification or explanation cannot be to take away the admission already made in the written statement.
It is pointed out by the learned counsel for the petitioner that in paragraph Nos.4 and 10 of Ext.P1 plaint, there is a specific averment that the plaintiff is a Monastery and entitled to the benefit under SRO 435/92 for exemption from the purview of the Kerala Buildings (Lease and Rent Control) Act. In Ext.P2 (para 2) written statement filed by the defendant, there was no specific denial of the averment made in para 10 of the plaint. Moreover, in para 2 of Ext.P2, there is a specific statement that paragraph Nos.3 to 7 of the plaint are admitted. Now, by way of IA No.474/2017, the defendant seems to be taken a diametrically opposite stand recalling his earlier admissions in the written statement pointed earlier, which in view of the decisions cited above, cannot be allowed. Hence, the court
OP(C)1079/17.
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below has gone wrong in allowing the application as any other application for amendment, without going deep into the matter and the consequences that may follow. Hence, this Original Petition is allowed and the order impugned at Ext.P6 is set aside. The court below is directed to expedite disposal of the suit before the court closes for summer vacation, positively. No costs.
ASHOK MENON JUDGE
jg
3 issues framed by the court
Whether the trial court errord in allowing an application for amendment of the written statement that sought to reverse earlier admissions?
Whether the amendment application should be rejected to prevent delaying tactics and subverting prior admissions?
What direction should be issued to expedite dismissal of the suit's controlled trial?
Colour shows how this judgement treated each authority
M/s.Modi Spinning & Weaving Mills Co. Ltd. and another v. M/s.Ladha Ram & Co.Followed¶35
M/s.Modi Spinning & Weaving Mills Co. Ltd. and another v. M/s.Ladha Ram & Co. [AIR 1977 SC 680] · Who else cites this
Girish v. JanakiReferred¶39
Girish v. Janaki [2014(1) KLT SN 38 (Case No.51)]
JYOTHI NIVAS JYOTHI SUPER BAZAR THODUPUZHA REPRESENTED BY ITS MONASTERY FR.JOSEPH KULAKATTU
SABUR ALIKHAN S/O.ABDUL KADHAR
ASHOK MENON
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
