Disposed

V.Venkiteswaran v. Thomas Paul

Kerala HC23 Mar 2018OP(C)/3037/2016

Case brief

AI extract

What is this about?

The High Court allowed an appeal under Article 226 against an order permitting amendment of a plaint in a specific performance suit. The Court held that the lower court's finding of lis pendens was factually incorrect as the property was sold before the suit, and the amendment would protract litigation.

What did the court decide?

Impugned order allowing amendment of plaint is set aside. Sub Judge directed to expedite disposal of suit. No costs.

V.Venkiteswaran Vs Thomas Paul — Specific Performance | 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 ASHOK MENON

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FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940

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OP(C).No. 3037 of 2016(O)

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-----------------------(I.A. NO.5869/2012 IN O.S.367/2011 OF I ADDL.SUB COURT, ERNAKULAM)

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PETITIONER(S)

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V.VENKITESWARAN AGED 67 YEARS, S/O P.S.V.IYER, 47/767, VAISHNAVI, PRASANTHI LANE, PONITHURA VILLAGE, TRIPUNITHURA.

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BY ADVS.SRI.L.RAJESH NARAYAN SRI.SHANKAR V.

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RESPONDENT(S):

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THOMAS PAUL AGED 61 YEARS, S/O PAULOSE, PATTASSERIL HOUSE, KANNAKULANGARA, TRIPUNITHURA, ERNAKULAM.682301.

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R1 BY ADV. SRI.ABRAHAM P.GEORGE R1 BY ADV. SMT.M.SANTHY R1 BY ADV. SMT.M.D.BEENA R1 BY ADV. SRI.K.M.SALIM

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16-03-2018, AND THE COURT ON 23-03-2018 DELIVERED THE FOLLOWING:

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OP(C).No. 3037 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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--------------- EXHIBIT P1	--------- TRUE COPY 24.3.2011.	OF	THE PLAINT IN OS NO.367/2011 DATED
EXHIBIT P2	TRUE COPY 5.8.2011.	OF	THE WRITTEN STATEMENT DATED
EXHIBIT P3	TRUE COPY	OF	THE PROOF AFFIDAVIT DATED 14.9.2012.
EXHIBIT P4	TRUE COPY 8.10.2012.	OF	THE IMPLEADING APPLICATION DATED
EXHIBIT P5	TRUE COPY	OF	THE COUNTER TO EXT.P4 DATED 17.10.12.
EXHIBIT P6	TRUE COPY	OF	I.A NO.5869/2012 DATED 29.10.2012.
EXHIBIT P7	TRUE COPY	OF	THE COUNTER TO EXT.P6 DATED 17.10.12.
EXHIBIT P8	TRUE COPY NO.5869/20	OF 12	THE ORDER DATED 2.12.2015 IN IA IN OS NO.367/2011.
EXHIBIT P9	TRUE COPY	OF	THE REVIEW PETITION DATED 14.2.2016.
EXHIBIT P10	TRUE COPY	OF	THE ORDER DATED 12.7.2016.

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RESPONDENT(S)' EXHIBITS:

/TRUE COPY/

PA TO JUDGE

dkr

ASHOK MENON, J.

O.P.(C) No. 3037 of 2016

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------------------------------------------Dated this the 23^rd day of March, 2018

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J U D G M E N T

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This petition is filed under Article 227 of the Constitution of India challenging the order dated 02-12-2015 of the learned Sub Judge in I.A.No.5869/2012 in O.S.No.367/2011 on the files of the Ist Additional Sub Court, Ernakulam. The suit is one for specific performance of a contract. The defendant contested the suit by filing written statement denying the execution of the agreement for sale relied on by the plaintiff. It is further contended by the defendant in para 8 of the written statement that he has already sold the plaint schedule property for valid consideration as per Sale Deed No.285/2011 dated 25-01-2011 of S.R.O. Thrippunithura and the purchasers are presently in possession of the plaint schedule property and that the defendant has no existing right over the property. The suit was listed for trial, oral testimonies of PW1 to PW3 and DW1 were recorded, documents were marked and evidence

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was closed and the case posted for final hearing. At this stage, the

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OP(C) 3037/2016

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plaintiff came up with two applications for impleading as additional defendants, the persons who had purchased the property and to amend the plaint and seeking to include a prayer for declare the sale deed executed in favour of the purchasers as null and void. The learned Sub Judge vide Ext.P8 order allowed the amendment as follows:-

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“Heard. Suit property was sold while lis pendens. Hence amendment is necessitated to get declared the impugned sale deed null and void and also for realisation of advance sale consideration. The same is otherwise permissible under specific relief Act. Hence the IA is allowed. Carryout amendment within 3 days.”

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The petitioner is not seeking amendment to include a prayer about which he was not aware, and was enlightened subsequent to the trial. There is a specific averment in the written statement that the property has been sold and the details of the sale deed is also mentioned. Despite that, the plaintiff did not take any steps to implead the purchasers of the property or get the plaint amended. He proceeded with the trial. The learned Sub Judge in Ext.P8 order has stated that the property was sold while “lis pendens”. This statement is factually untrue, for the written statement reveals that the property was sold even prior to the suit. The learned Counsel

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OP(C) 3037/2016

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for the defendant is aggrieved by this order of the learned Sub Judge and seeks interference of this Court.

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The learned Counsel for the petitioner relies on the decision of the Apex Court in 2008 KHC 4577, Bharat Karsondas Thakkar v. M/s Kiran Construction Co. , wherein it is observed that the scope of the suit for specific performance could not be enlarged to convert the same into a suit for title and possession and a third party or a stranger to the contract could not be added so as to convert the suit from one character to a different character. The learned Counsel for the petitioner also relies on the decision reported in 2014 KHC 420, Kalpana v. Premkumar to canvass for the position that amendment should not be allowed after commencement of the trial. The plaintiff did not have to wait till the trial concluded for bringing about the amendment. The finding of the learned Sub Judge that the property was sold lis pendens is factually incorrect and the order cryptic. The amendment would serve no purpose but protract the litigation. Hence the Court below was not justified in allowing the petition to amend the plaint. That apart, the nature of the suit would be completely altered by allowing

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OP(C) 3037/2016

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the amendment. For the above reasons, I find no justification in Ext.P8 order and the impugned order is set aside. The learned Sub Judge is directed to expedite the disposal of the suit. The Original Petition is disposed of accordingly. No costs.

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Sd/ASHOK MENON Judge

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dkr

V.Venkiteswaran v. Thomas Paul

Case brief

What is this about?

What did the court decide?

V.Venkiteswaran v. Thomas Paul

Case brief

What is this about?

What did the court decide?

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