Allowed

Kottakkakathu Vattaparambilkuduma Kshetra Trust v. Kottakkakathu Vattapparambil Kudumba Kshetra Trust

Kerala HC2 Mar 2017OP(C)/1956/2014

Case brief

AI extract

What is this about?

This writ petition challenged an order where the trial court directed plaintiffs to file a fresh proof affidavit because it was not in tune with pleadings. The High Court held that the trial court lacks power to direct a fresh affidavit and only eschewed unwarranted portions before accepting it.

What did the court decide?

Impugned order setting aside. Direction to lower court to accept proof affidavit after eschewing irrelevant matters.

Kottakkakathu Vattaparambilkuduma Kshetra… — Civil Procedure and Limitation | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

THURSDAY, THE 2ND DAY OF MARCH 2017/11TH PHALGUNA, 1938

¶5

OP(C).No. 1956 of 2014 (O)

¶6

AGAINST THE ORDER IN O.S.NO.397/2006 OF THE MUNSIFF'S COURT, KAYAMKULAM DATED 13.8.2014

¶7

PETITIONER/2ND PLAINTIFF:

¶8

KOTTAKKAKATHU VATTAPARAMBIL KUDUMBA KSHETRA TRUST KANDALLOOR, PUTHIYAVILA MURI, KANDALLOOR VILLAGE, REPRESENTED BY ITS SECRETARY, MADHAVAN VALIYATHAN, VATTAPARAMBIL HOUSE, PUTHIYAVILA MURI, KANDALLOOR VILLAGE, KAYAMKULAM.

¶9

BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN

¶10

RESPONDENTS/1ST PLAINTIFF AND DEFENDANTS:

¶11

KOTTAKKAKATHU VATTAPPARAMBIL KUDUMBA KSHETRA TRUST KANDALLOOR, PUTHIYAVILA MURI, KANDALLOOR VILLAGE, REP. BY ITS PRESIDENT B. GOURIKUTTY AMMA, D/O. BHAGEERATHI AMMA, DEEPTHIYIL, PAZHAKUTTY, KARIPPUR VILLAGE, NEDUMANGAD-695 541.

¶12

SREEDHARAN NAIR, S/O. SANKARAN NAIR, AGED 56 YEARS, RETD. TEACHER, RESIDING AT SREEMANDIRAM, PUTHIYAVILA MURI, KANDALLOOR VILLAGE-690535.

¶13

MURALEEDHARAN UNNI, S/O. SREEDHARAN UNNI, AGED 51 YEARS, KSRTC CONDUCTOR, RESIDING AT SREEDHARAM, MALAMEL BHAGAM MURI, PATHIYOOR VILLAGE-690 552.

¶14

SUBRAMONIYAN UNNI, S/O. GOPALAN UNNI, AGED 50 YEARS, BUSINESS, RESIDING AT REVATHY, PUTHIYAVILA MURI, KANDALLOOR VILLAGE-690 535.

¶15

GANAPATHY UNNI, S/O. GOAPALAN UNNI, AGED 57 YEARS, FARMER, RESIDING AT BRAHMANY HOUSE, PUTHIYAVILA MURI, KANDALLOOR VILLAGE-690535.

¶16

RAJAPPAN NAIR, S/O.MADHAVAN NAIR, AGED 50 YEARS, EX-SERVICE, RESIDING AT RAJESH BHAVAN, PUTHIYAVILA MURI, KANDALLOOR VILLAGE-690 535.

¶17

VIJAYAN, S/O. CHAKRAPANI, AGED 52 YEARS, EX-SERVICE, RESIDING AT SNEHANILAYAM, PUTHIYAVILA MURI,

¶18

KANDALLOOR VILLAGE-690 535.

¶19

:: 2 ::

¶20

O.P.(C) NO.1956 OF 2014

¶21

THIRUVITHAMKOOR DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM-695003.

¶22

GEETHAKUMARI, AGED 50 YEARS, W/O. ADV. RAJASEKHARAN PILLAI, RESIDING AT SAYEE BHAVAN, ERUVA EAST MURI, PATHIYOOR VILLAGE, KAYAMKULAM, FROM KOTTAKKAKATHU VATTAPARAMBIL, PUTHIYAVILA MURI, KANDALLOOR VILLAGE-690 535.

¶23

R9 BY ADV. SRI.M.BALAGOVINDAN R4 BY ADV. SRI.V.ANIL (K/1480/98) R8 BY ADV. SRI.P.GOPAL

¶24

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶25

OP(C).No. 1956 of 2014 (O)

¶26

APPENDIX

¶27

PETITIONER'S EXHIBITS

¶28

EXT.P1	A TRUE COPY OF PLAINT IN OS.NO.397/06 OF THE MUNSIFF'S COURT, KAYAMKULAM.
EXT.P2	A TRUE COPY OF WRITTEN STATEMENT FILED BY DEFENDANTS 1 & 2
EXT.P3	A TRUE COPY OF WRITTEN STATEMENT FILED BY DEFENDANTS 3 TO 6
EXT.P4	A TRUE COPY OF APPLICATION SEEKING AMENDMENT OF EXT.P3 WRITTEN STATEMENT.
EXT.P5	A TRUE COPY OF WRITTEN STATEMENT FILED BY 7TH DEFENDANT.
EXT.P6	A TRUE COPY OF WRITTEN STATEMENT FILED BY 8TH DEFENDANT.
EXT.P7	A TRUE COPY OF ISSUEDS FRAMED IN OS.NO.397/06 ON 17-6- 2013.
EXT.P8	A TRUE COPY OF CHIEF AFFIDAVIT FILED BY THE 2ND PLAINTIFF IN OS NO. 397/06 ON THE FILE OF MUNSIFFS COURT, KAYAMKULAM.
EXT.P9	A TRUE COPY OF OBJECTION FILED BY THE COUNSEL FOR THE 7TH DEFENDANT.
EXT.P10	A TRUE COPY OF ORDER DATED 13-8-2014 IN O.S. NO.397/2006 ON THE FILE OF MUNSIFF'S COURT, KAYAMKULAM.

¶29

RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

AHZ/

P.Somarajan, J.

O.P.(C)No.1956 of 2014 (O)

¶34

Dated this the 2^nd day of March, 2017

¶35

JUDGMENT

¶36

Ext.P10 order dated 13.8.2014 in O.S.No.397 of 2006 on the file of the Munsiff's Court, Kayamkulam is under challenge in this original petition filed under Article 227 of the Constitution of India by the original petitioner/second plaintiff. The proof affidavit in lieu of chief examination was filed before the trial court by the second plaintiff. The trial court passed an order dated 13.8.2014 eschewing the irrelevant matters averred in the proof affidavit based on the decision rendered by this court in Gangan Menon v. Bright Credit

¶37

and Real Estate (P) Ltd . (2007 (3) KLT 878) . The order of the lower court is extracted below for reference:

¶38

“Heard. On going through the proof affidavit and plaint, it is seen that the contents of the proof affidavit is not in tune with the pleadings in the plaint. Plaintiffs incorporated irrelevant matters in the proof affidavit that is not shown in the plaint. In the above circumstances and relying on the decision by the Hon'ble High Court in 2007 (3) KLT 878, it is necessary to eschew the irrelevant matters averred in the proof affidavit as

¶39

O.P.(C)No.1956 of 2014 (O)

¶40

:: 2 ::

¶41

mentioned in the objection of the defendants. Hence the portion of the affidavit as shown in the objection which is not in tune with the pleading is hereby eschewed and directed the plaintiffs to file fresh affidavit.”

¶42

It is not at all permissible for the trial court to consider whether the proof affidavit tendered is in tune with the pleadings in the plaint and to direct the plaintiffs to file a fresh proof affidavit. The court can look into the evidenciary value of the proof affidavit only at the time of final hearing, but the unwarranted and irrelevant pleadings and averments raised in the proof affidavit can be eschewed at any time even at the time of acceptance of proof affidavit. As discussed above, there is no provision anywhere in the Code of Civil Procedure enabling the trial court to direct the plaintiffs to file a fresh proof affidavit. It is the domain of the plaintiffs or the parties concerned in the suit and the trial court has no power at all with respect to those matters. It is also not permissible for the trial court to look into the pleadings raised in the proof affidavit at its initial stage except for the purpose of eschewing unwarranted pleadings averred in the proof affidavit. The proper course available to the lower court is to accept the proof affidavit after eschewing

¶43

O.P.(C)No.1956 of 2014 (O)

¶44

:: 3 ::

¶45

unwarranted portions, if any. Hence the order of the lower court is liable to be intercepted as there is failure to apply the jurisdiction vested with the trial court in its proper perspective while passing the impugned order. The order of the lower court hence set aside. The lower court is hereby directed to accept the proof affidavit after eschewing the irrelevant matters, if any, averred in the proof affidavit. It has to be acted upon by the lower court at the time of final hearing, if it is otherwise admissible in evidence.

¶46

The original petition is disposed of accordingly. No order as to costs.

¶47

P. Somarajan Judge

¶48

ahz/

Kottakkakathu Vattaparambilkuduma Kshetra Trust v. Kottakkakathu Vattapparambil Kudumba Kshetra Trust

Case brief

What is this about?

What did the court decide?

Kottakkakathu Vattaparambilkuduma Kshetra Trust v. Kottakkakathu Vattapparambil Kudumba Kshetra Trust

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Babu Vs Sarala Kumari

Louis Vs Haridasan

The Special Tahsildar.L.a.No.I Vs Kunchamma and Another

Nss Karayogam Branch NO.1365 Vs Mahim Aboobaker

Ammanarcoil Vs St. Thomas Ferona Church

Sweety Xavier Vs Sebastian Joseph