Allowed

Sudheesh P.S. v. Sulabha

Kerala HC11 Jan 2021OP(C)/486/2018

Case brief

AI extract

What is this about?

The High Court set aside the trial court's order dismissing an amendment application. It held that the delay was not due to willful laches, given the change of counsel and the essential nature of adding a claim for mandatory injunction to decide the dispute.

What did the court decide?

The impugned order dismissing I.A. No. 518/2018 is set aside, and the application is allowed with directions to permit amendment and dispose of the suit within five months.

Sudheesh P.S. Vs Sulabha — Civil Procedure and Limitation | Kerala HC (2021)

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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 T.V.ANILKUMAR

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MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

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OP(C).No.486 OF 2018(O)

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AGAINST THE ORDER/JUDGMENT IN OS 858/2014 DATED 14-02-2018 OF PRINCIPAL MUNSIFF,ALAPPUZHA

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PETITIONER/PLAINTIFF:

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SUDHEESH P.S. S/O. SUSHEELAN KUNNUNKAL HOUSE, AVALOOKUNNU P.O., SOUTH ARYAD MURI, KOMALAPURAM VILLAGE, ALLEPPEY DIST.

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BY ADVS. SMT.P.F.ROSY SMT.KRIPA ELIZABETH MATHEWS SRI.V.M.SYAM KUMAR

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RESPONDENTS/DEFENDANTS:

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1 SULABHA W/O. RENADEV, VALIYAKOVILAKAM, SOUTH ARYAD MURI, KOMALAPURAM VILLAGE, ALLEPPEY-688 542

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2 RENADEV VALIYAKOVILAKAM, SOUTH ARYAD MURI, KOMALAPURAM VILLAGE, ALLEPPEY.688 542

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3 KOUSALYA K. K. VALIYAKOVILAKAM, SOUTH ARYAD MURI, KOMALAPURAM VILLAGE, ALLEPPEY.688 542

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R1-3 BY ADV. SRI.P.SHANES METHAR

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No.486 OF 2018 2

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JUDGMENT

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Dated this the 11th day of January 2021

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The plaintiff in O.S. No. 858/2014 before the Principal

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Munsiff, Alappuzha, challenges order dated 14-2-2018 passed by that court dismissing amendment application filed by him in the suit for incorporating relief of mandatory injunction also.

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The suit was originally filed for perpetual injunction restraining the defendants (respondents herein) from interfering with user of existing path way. It is stated that during the pendency of the suit, the path way was blocked which necessitated amendment of the claim and incorporation of additional prayer for mandatory injunction as well.

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The court below dismissed I.A. No. 518/2018 (Amendment Petition) for two reasons:

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i) It was filed after commencement of trial and the petitioner failed to show that he was diligent.

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ii) The trial court would be able to take care of the subsequent event and grant appropriate relief of mandatory injunction in the event of alleged interference with the subject matter being proved by plaintiff to have occurred after suit.

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OP(C).No.486 OF 2018 3

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Heard the learned Counsel for the petitioner. No representation was made on behalf of the respondents not with standing them being served with notice of this proceedings.

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It was argued that in Ext. P5 application for amendment, a specific ground was taken explaining the reason for instituting amendment application after commencement of trial. It is submitted that there was change of vakkalath and a new lawyer had to take up the cause of the party but in the meantime, the trial commenced in the meanwhile. This ground is not seen denied by the respondents. Therefore, I am of the opinion that the delay in institution of amendment application before commencement of the trial was not due to willful laches. Since, the test of due diligence stands satisfied, the court below was not justified in having passed the impugned order refusing claim for amendment.

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Even assuming that the alleged subsequent interference with the path way could be proved by evidence also, and the court below would be able to take care of the situation, it does not mean that the court below can justify its action denying the right of the petitioner to seek to add a new relief of mandatory injunction when the proposed amendment is indisputably essential to decide the matter in dispute between parties. For these reasons, I am not in a position to justify the impugned order.

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OP(C).No.486 OF 2018 4

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In the result, the impugned order is set aside and I.A. No. 518/2018 is allowed. The court below will permit the plaintiff to carry out amendment and further give adequate opportunity to respondents to submit written statement in answer to the amended claim. There will, further, be a direction to court below to dispose of O.S. No. 858/2014 within a period of five months from today on receipt of certified copy of this order.

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Sd/-

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T.V.ANILKUMAR JUDGE

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SMF/11.01

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I.A.No.518/2018 occurring in paragraph 3 at page 2 and in the operative portion of judgment dated 11.01.2021 in OP(C) 486/2018 is corrected and substituted as I.A.No.548/2018 as per order dated 09.04.2021 in I.A.No.1/2021.

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Sd/-

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DEPUTY REGISTRAR

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OP(C).No.486 OF 2018 5

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE PLAINT IN O.S.NO. 858 OF 2014 BEFORE THE MUNSIFF COURT ALAPPUZHA.
EXHIBIT P2	TRUE COPY OF THE ADVOCATE COMMISSIONER'S REPORT DTD. 08.10.2014.
EXHIBIT P3	TRUE COPY OF THE WRITTEN STATEMENT FILED DEFENDANTS 1 AND 2 IN OS NO. 858 OF 2014 BEFORE THE MUNSIFF COURT ALAPPUZHA.
EXHIBIT P4	TRUE COPY OF THE ORDER DTD. 10.04.2015 IN IA NO. 886/2015 OF THE LEARNED MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P5	TRUE COPY OF THE IA NO. 548 OF 2018 IN O.S. NO. 858 OF 2014 BEFORE THE LEARNED MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P6	TRUE COPY OF THE OBJECTION FILED BY THE 1ST AND 2ND DEFENDANT'S TO I.A.NO. 548 OF 2018 IN O.S.NO.858 OF 2014 BEFORE THE LEARNED MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P7	TRUE COPY OF THE IA NO. 549 OF 2018 IN O.S.NO. 858 OF 2014 BEFORE THE LEARNED MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P8	TRUE COPY OF THE ORDER DTD. 14.02.2018 I.A. NO. 548 OF 2018 IN O.S. NO. 858 OF 2014 BEFORE THE LEARNED MUNSIFF COURT, ALAPPUZHA.

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//TRUE COPY// P A TO JUDGE

Sudheesh P.S. v. Sulabha

Case brief

What is this about?

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Sudheesh P.S. v. Sulabha

Case brief

What is this about?

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