Allowed

Sahadevan v. C.K. Rajendraprasad (Died)

Kerala HC1 Jun 2018OP(C)/4/2018

Case brief

AI extract

What is this about?

Petitioner, an aged man, appealed against the dismissal of his application to amend a plaint in a property suit. The High Court allowed the amendment, set aside the lower court's order, and imposed costs on the petitioner for the delay. The Court held delay is not a bar to amendment if justifiable.

What did the court decide?

Impugned order dismissing amendment application set aside; application allowed subject to payment of Rs. 15,000/- costs.

Sahadevan Vs C.K. Rajendraprasad (Died) — Contract and Commercial Disputes | Kerala HC (2018)

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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 SATHISH NINAN

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FRIDAY, THE 1ST DAY OF JUNE 2018 / 11TH JYAISHTA, 1940

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OP(C).No. 4 of 2018

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OS.NO.15/2008 OF MUNSIFF COURT, ALATHUR

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PETITIONER/PLAINTIFF IN THE COURT BELOW:

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SAHADEVAN, S/O.PONNAN, AGED 86 YEARS, PUTHANPURACKAL HOUSE, CHOORKUNNU, KANNAMBRA P.O, KANNAMBRA NO.I VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT.

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BY ADVS.SRI.JACOB SEBASTIAN

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SRI.K.A.SIYAD SRI.K.V.WINSTON SMT.ANU JACOB

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RESPONDENT(S)/DEFENDANTS IN THE COURT BELOW:

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1. C.K.RAJENDRAPRASAD (DIED)

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2. PARVATHY, WIFE OF LATE C.K RAJENDRAPRASAD, PUTHENPURACKAL HOUSE, CHOORKUNNU, KANNAMBRA P.O, KANNAMBRA NO.I VILLAGE,ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 686.

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3. PRASANNA, DAUGHTER OF LATE C.K RAJENDRAPRASAD, PUTHENPURACKAL HOUSE, CHOORKUNNU, KANNAMBRA P.O, KANNAMBRA NO.I VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 686.

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4. PRAMEELA, DAUGHTER OF LATE C.K RAJENDRAPRASAD, PUTHENPURACKAL HOUSE, CHOORKUNNU, KANNAMBRA P.O, KANNAMBRA NO.I VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT, PIN - 678 686.

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R2 TO R4 BY ADVS. SRI.V.A.JOHNSON (VARIKKAPPALLIL) SRI.P.VIJAYARAGHAVAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2018,THE COURT ON 01-06-2018 DELIVERED THE FOLLOWING:

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sts

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OP(C).No. 4 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S NO.15/2008 OF THE COURT OF THE MUNISFF OF ALATHUR. EXHIBIT P2 A TRUE COPY OF I.A NO.977/2017 IN O.S NO.15/2008 OF THE COURT OF MUNSIFF OF ALATHUR.

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EXHIBIT P3 A TRUE COPY OF ORDER DATED DECEMBER 11, 2017 IN I.A NO.977/2017 IN O.S NO.15/2008 OF THE COURT OF MUNSIFF OF ALATHUR.

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RESPONDENT'S EXHIBITS: NIL

/TRUE COPY/

P.S.TO JUDGE

sts

1/6/2018

SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = O. P. (C) No.4 of 2018

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= = = = = = = = = = = = = = = = = = Dated this the 1^st day of June, 2018

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J U D G M E N T

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The dismissal of an application for amendment of the plaint schedule is under challenge by the plaintiff.

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A larger extent of property including the 12 cents described in the plaint schedule belonged to the father of the petitioner-plaintiff and his two brothers as included in 'D' Schedule item 3 to Partition Deed No.2467/1940 of Alathur SRO. By virtue of some arrangement between the parties, it appears that the 12 cents of property on the southern portion was in the possession of the petitioner's father. On the death of the petitioner's father, the other legal heirs released their rights to the petitioner as per Release Deed No.2369/1985. The property of the defendant is on the southern side of the plaint schedule property. Alleging attempt to trespass by the defendant, the

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O. P. (C) No.4 of 2018

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:- 2 :-

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suit is filed for a prohibitory injunction restraining the same. A Commissioner was deputed to identify the property. The Commissioner reported that the plaint schedule property which is a part of 'D' Schedule Item No.3 in Partition Deed No.2467/1940 could not be identified separately from the larger extent included in the said schedule. Thereupon, the petitioner-plaintiff filed I.A. No.977/2017 seeking amendment of the plaint. The petitioner, as per the amendment, sought to include the entire property in 'D' Schedule Item No.3 to the Partition Deed No.2467/1940 in the suit. The petitioner also sought to incorporate averments to the effect that by virtue of the partition deed, the entire property belonged to the petitioner's father and his two brothers and that by virtue of the release deed executed by the petitioner's brothers, the petitioner has become 1/3^rd owner of the entire property. A plea was further sought to be incorporated to the effect that the suit is filed on behalf of the other coowners also. The application was dismissed by the

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O. P. (C) No.4 of 2018

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court below stating that there is no document evidencing the consent by the other co-owners. It was also observed that the plaintiff never had a case that he is the co-owner of the property.

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I am of the opinion that the dismissal of the amendment application was not proper. It could not be disputed that even in the original plaint the plaintiff-petitioner traced the title to Partition Deed No.2467/1940 whereunder the petitioner's father and two other brothers were allotted property in 'D' schedule Item No.3 therein. On the demise of the petitioner's father, his other legal heirs executed release deed in favour of the petitioner whereunder the petitioner became the owner of the 1/3^rd rights of his father and thus a co-owner along with the other two brothers of the petitioner's father. Though the petitioner claimed that he is in possession of the southern 12 cents out of the larger extent of property, admittedly there is no document evidencing such partition between the sharers. Therefore, prima facie, it could not be found fault

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O. P. (C) No.4 of 2018

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with when the plaintiff seeks to aver that he is only a co-owner of the entire property. Be that as it may, the defendant is a third party who does not have any right over 'D' schedule item No.3 property included in the partition deed. Essentially what is sought for is to injunct the defendant from trespassing into any portion of the property included in 'D' schedule Item No.3 to the Partition Deed. There is a specific averment to the effect that the petitioner has filed the suit only as a co-owner. The arrangement interse between the coowners of 'B' Schedule Item No.3 to the Partition Deed is not of significance especially when the petitioner has pleaded that the suit is filed on behalf of all the other co-owners. A suit for injunction by one co-owner on behalf of other coowners is maintainable. It is especially so when it has been specifically pleaded that the suit is filed on their behalf also.

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It is true that the suit is of the year 2008 and that there is inordinate delay in filing the application. I am of the opinion that delay alone

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O. P. (C) No.4 of 2018

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shall not be the ground to dismiss the amendment. The inconvenience caused to the defendant by the amendment can be compensated by payment of costs.

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Accordingly, this original petition is allowed. The impugned order dated 11.12.2017 in I.A. No.977/17 is set aside and the application is allowed. However, this will be subject to payment of an amount of `15,000/- as costs to the counsel appearing for the respondents before this Court within a period of one month from today. In the event of non-payment of the costs as directed, the original petition will stand dismissed confirming the impugned order.

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Sd/-

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SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

Sahadevan v. C.K. Rajendraprasad (Died)

Case brief

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Sahadevan v. C.K. Rajendraprasad (Died)

Case brief

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