Dismissed

Jijimon v. Celin Antony

Kerala HC15 Feb 2018OP(C)/3161/2013

Case brief

AI extract

What is this about?

The High Court of Kerala, exercising jurisdiction under Article 227 of the Constitution, dismissed a writ petition challenging an order allowing amendment of a plaint. The Court held that a dismissal of an unpressed application does not constitute adjudication for res judicata and an interlocutory dismissal does not bar a fresh application under Order II Rule 2 CPC.

What did the court decide?

The original petition challenging the amendment order was dismissed without costs.

Jijimon Vs Celin Antony — Property and Title | 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 P.SOMARAJAN

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THURSDAY, THE 15TH DAY OF FEBRUARY 2018 / 26TH MAGHA, 1939

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OP(C).No. 3161 of 2013

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AGAINST THE ORDER DATED 21.6.2013 IN I.A.NO.4231/2012 IN O.S.NO.467/2011 ON THE FILES OF THE PRINCIPAL SUB JUDGE, KOTTAYAM.

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PETITIONER/COUNTER PETITIONER/DEFENDANT

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JIJIMON, AGED 43 YEARS, S/O.LATE VARGHESE ANTONY, KIDANGOOTHARA HOUSE, CHEERAMCHIRA, VEROOR MURI, CHETHIPUZHA VILLAGE - 686 014.

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BY ADVS.SMT.SARITHA THOMAS

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SRI.SAJEEVAN KURUKKUTTIYULLATHIL

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RESPONDENT/PETITIONER/PLAINTIFF:

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CELIN ANTONY KIDANGOOTHARA HOUSE, CHEERAMCHIRA P.O., VEROOR MURI, CHITHIPUZHA VILLAGE - 686 014.

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BY ADV. SRI.M.J.THOMAS

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 3161 of 2013 (O)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXT.P1: COPY OF THE PLAINT DATED 20.9.2011 FILED BY THE RESPONDENT.

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EXT.P2: COPY OF THE WRITTEN STATEMENT DATED 22.12.2011 FILED BY THE PETITIONER.

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EXT.P3: COPY OF THE DETAILED REPLICATION DATED 21.2.2012 FILED BY THE RESPONDENT.

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EXT.P4: COPY OF THE APPLICATION AS I.A.NO.848/2012 FILED BY THE RESPONDENT.

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EXT.P5: COPY OF THE APPLICATION DATED 7.11.2012 AS I.A.NO.4231/2012 FILED BY THE RESPONDENT.

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EXT.P6: COPY OF THE OBJECTION DATED 13.6.2013 FILED BY THE PETITIONER.

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EXT.P7: COPY OF THE ORDER DATED 21.6.2013.

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RESPONDENT'S EXHIBITS: NIL

//TRUE COPY//

AHZ/

P.Somarajan, J.

O.P.(C) No.3161 of 2013 (O)

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Dated this the 15^th day of February, 2018

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JUDGMENT

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The counter petitioner/defendant came up with this Original Petition under Article 227 of the Constitution of India challenging the order dated 21.6.2013 in I.A.No.4231 of 2012 in O.S.No.467 of 2011, on the file of the Court of the Principal Sub Judge, Kottayam. The said application was filed for amending the plaint by incorporating a prayer for establishing the right claimed by the plaintiff based on irrevocable licence claimed by her over the property wherein she was residing. Earlier, the suit was filed for injunction simplicitor against the disturbance of her peaceful residence and possession of the residential plot (part of the building). The amendment application was filed seeking to amend the plaint by incorporating a prayer as well as a pleading in the plaint and it was allowed by the learned Sub Judge after hearing both the parties under the impugned order.

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O.P.(C) No.3161 of 2013 (O)

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:: 2 ::

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The main challenge against the impugned order is that the lower court has not considered the dismissal of an earlier application, which was not pressed into service by the party concerned. Earlier, an amendment application was filed by the plaintiff for the same relief, which was subsequently not pressed into service and ultimately it was dismissed as not pressed. It is thereafter the present application was filed seeking amendment of the plaint by incorporating the prayers noted in the application. The contention raised by the learned counsel for the petitioner is that the present application is hit by Section 11 and Order II Rule 2 of CPC. The further contention raised by the petitioner is that it will alter the nature and character of the suit and hence it is not permissible to allow the amendment as prayed for by the petitioner.

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In order to have application of either doctrine of res judicata or Section 11 CPC, there should be an adjudication of the issue pertaining to the parties to the suit or to the

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O.P.(C) No.3161 of 2013 (O)

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proceedings by a competent Court. Otherwise, there cannot be any application of either the doctrine of res judicata or Section 11 CPC. It can be made available in different stages of a proceeding when there is attainment of finality or conclusiveness of any fact in dispute by the court in an earlier stage of the proceeding. The dismissal of an application as not pressed does not involve any adjudication of dispute between the parties. As such, the doctrine of res judicata would not come into play much less Section 11 CPC.

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In so far as Order II Rule 2 is concerned, the very

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basis of the principle behind it is the cause of action and omission to sue. It cannot be substituted in the place of an order passed in an interlocutory application when the party has not pressed the application into service. A dismissal for default of an interlocutory application would not by itself come under the purview of either Section 11 or under Order IX Rule 9 or under Order II Rule 2 CPC.

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O.P.(C) No.3161 of 2013 (O)

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:: 4 ::

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The learned counsel for the petitioner placed

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reliance in Y.B.Patil and others v. Y.L.Patil (1977 KHC 727), Muhammed Master v. Abu Haji (1981 KHC 334) and Mariyam v. A. Vijayarajan (2015 (1) KHC 324) . All these three decisions are standing on a different footing and were dealing with the application of res judicata when the suit was ultimately ended in a decree either by way of dismissal by passing a decree in terms of the plaint partly or wholly. Order IX Rule 9 CPC also cannot be made available in an interlocutory application as the bar is only with respect to the suit or counter claim, as the case may be. Order II Rule 2 CPC also cannot be made available as the question of cause of action does not arise in so far as an interlocutory application is concerned. The objection raised by the petitioner that the amendment sought for would alter the nature and character of the suit cannot be accepted because of the reason that the suit was filed based on the same subject matter between the same parties in which a claim for

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O.P.(C) No.3161 of 2013 (O)

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declaration of right was also sought to be incorporated. It will not alter the character and nature of the suit. It was also brought to my notice that the jurisdiction under Article 227 of the Constitution is so limited. The jurisdiction of either the appellate court or the revisional court cannot be extended to a proceeding under Article 227 of the Constitution.

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In any view, the present petition will not stand, deserves only dismissal and I do so, but without any costs.

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P. Somarajan Judge

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ahz/

Jijimon v. Celin Antony

Case brief

What is this about?

What did the court decide?

Jijimon v. Celin Antony

Case brief

What is this about?

What did the court decide?

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