The High Court set aside the Munsiff court order dismissing applications to amend pleadings, holding the trial had not commenced as proof affidavit was not filed, and directed the amendment to be carried out expeditiously.
Impugned Ext P10 order set aside; applications for leave to amend pleadings allowed; time limit of four months granted for disposal of suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 6TH DAY OF JUNE 2022 / 16TH JYAISHTA, 1944
OP(C) NO. 1358 OF 2018
AGAINST THE ORDER/JUDGMENT IN OS 187/2013 OF MUNSIFF COURT, THIRUVALLA
PETITIONER/S:
1 RAJU BHASKARAN,S/O. LATE BHASKARAN, AGED 54 YEARS, RESIDING AT MALAYIL PUTHEN VEEDU, THALAYAR MURI, KUTTOOR VILLAGE, KALARIL HOUSE, MUTHOOR MURI, KUTTAPPUZHA VILLAGE, THIRUVALLA, PATHANAMTHITTA689106.2SUJATHA RAJU,W/O. RAJU BHASKARAN, AGED 49 YEARS,
RESIDING AT MALAYIL PUTHEN VEEDU, THALAYAR MURI,
KUTTOOR VILLAGE, THIRUVALLA, PATHANAMTHITTA- 689106.
BY ADVS.
SRI.CHERIAN GEE VARGHESE
SRI.R.B.BALACHANDRAN
SRI.P.HARIDAS
SRI.RENJI GEORGE CHERIAN
SRI.RISHIKESH HARIDAS
SRI.P.C.SHIJIN
RESPONDENT/S:
RAJ MOHAN,S/O. LATE KOCHURAMAN, AGED 54 YEARS,
RESIDING AT MALAYIL PUTHENVEETTIL HOUSE, THALAYAR
MURI, KUTTOOR VILLAGE-689106.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.MANJUNATH MENON
SRI.AJAY BEN JOSE
SHRI.HARIKRISHNAN S.
SMT.HANI P.NAIR
SRI.R.GITHESH
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(C) No.1358 of 2018
C.S DIAS,J.
---------------------------
OP(C) No.1358 of 2018
----------------------------Dated this the 6th day of June, 2022.
JUDGMENT
The original petition is filed to set aside Ext P10 order passed by the Court of the Munsiff, Thiruvalla in IA Nos. 1124/2018, 1126/2018 and 1161/2018 in O.S No.187/2013.
that, they are the plaintiffs in the above suit filed for a decree of injunction against the respondent from obstructing items Nos. 1 and 2 pathways. The suit was filed in a hurried manner. The petitioners could not assert their right of easement and omitted to make their prayer for declaration of easement. Therefore, they filed the above applications seeking leave to amend the plaint. However, the learned Munsiff by the impugned Ext P10 order, dismissed the applications on the ground that the petitioners have filed the applications only on the date of
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OP(C) No.1358 of 2018
the suit was listed for trial. Ext P10 order is erroneous and wrong. Hence, the original petition.
appearing for the petitioners and Sri.P.Prigith, the learned counsel appearing for the respondent.
Joseph [2021 (1) KHC 23] and a catena of decisions has
held that the trial commences in a suit on the date on which the proof affidavit in lieu of chief examination is filed.
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OP(C) No.1358 of 2018
even if additional pleadings are incorporated in the plaint, it would be subject to the right of the respondent to file an additional written statement to the amended plaint and point out such contradictions in the pleadings and at the time of trial.
In the result, Ext P10 order is set aside and Exts P7 to P9 applications are allowed. The petitioners shall carry out the amendment within the stipulated time period as prescribed under law, immediately on receipt of a certified copy of the judgment. The respondent may file his additional written-statement, if any, to the amended plaint.
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OP(C) No.1358 of 2018
The court below shall consider and dispose of OS No.187/2013 and connected cases, in accordance with law, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a certified copy of
the judgment.
The original petition is ordered accordingly.
sd/-
Sks/6.6.2022
C.S.DIAS, JUDGE
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OP(C) No.1358 of 2018
PETITIONER EXHIBITS |
APPENDIX OF OP(C) 1358/2018 |
|---|---|
EXHIBIT P1 |
TRUE COPY OF THE PLAINT IN O.S.NO.187/2013MUNSIFF COURT,THIRUVALLA FILED BY THEPETITIONERS DATED 11.4.2013 |
EXHIBIT P2 |
TRUE COPY OF THE PLAINT IN O.S.NO.226/2013 OFMUNSIFF COURT,THIRUVALAL FILED BY THERESPONDENT DATED NIL. |
EXHIBIT P3 |
TRUE COPY OF THE PLAINT IN O.S.NO.275/2015BEFORE THE MUNSIFF COURT,FILED BY 1STRESPONDENT DATED NIL. |
EXHIBIT P4 |
TRUE COPY OF THE WRITTEN STATEMENT FILED INO.S.NO.187/2013 BEFORE THE MUNSIFFCOURT,THIRUVALLA DATED 7.7.15. |
EXHIBIT P5 |
TRUE COPY OF THE WRITTEN STATEMENT FILED INO.S.NO.226/2013,BEFORE THE MUNSIFFCOURT,THIRUVALLA DATED 4.4.16. |
EXHIBIT P6 |
TRUE COPY OF THE WRITTEN STATEMENT FILED INO.S.NO.275/2015 BEFORE THE MUNSIFFCOURT,THIRUVALLA DATED 30.11.16. |
EXHIBIT P7 |
TRUE COPY OF I.A.NO.1124/2018 DATED 21.5.2018BEFORE THE MUNSIFF COURT,THIRUVALLA. |
EXHIBIT P8 |
TRUE COPY OF THE 1126/2018 DATED 21.5.2018BEFORE THE MUNSIFF COURT,THIRUVALLA |
EXHIBIT P9 |
TRUE COPY OF THE 1161/2018 DATED 21.5.2018BEFORE THE MUNSIFF COURT,THIRUVALLA. |
EXHIBIT P10 |
TRUE COPY OF THE COMMON ORDER INI.A.NOI.1124/2018,I.A.NO.1126/18 &I.A.NOI.1161/18 IN O.S.NOI.187/2013 OF THELEARNED MUNSIFF,THIRUVALLA DATED 23.05.2018. |
EXHIBIT P11 |
True copy of the commission report pertainingto inspection dated 11.04.2013 filed on16.05.2013 |
EXHIBIT P12 |
True copy of the commission report in IA no.389/2013 in os no. 187/2013 of Munsiff CourtThiruvalla (filed before vacation court)pertaining to inspection on 25.04.2013 andreported on 09.05.2013 |
EXHIBIT P13 |
True copy of the commission report in IA429/2013 of vacation court Pathanamthitta (os226/2013 of Munsiff Court Thiruvalla) visitedon 29.04.2013 and reported on 06.05.2013 |
3 issues framed by the court
Whether the impugned order dismissing applications for leave to amend the plaint was erroneous as the trial had not commenced under the rule establishing that trial commences upon filing of proof affi
Whether the proposed amendment of the plaint was inconsistent with the original pleading and barred.
Whether the lower court erred in refusing leave to amend the plaint seeking injunction against obstruction of pathways.
Colour shows how this judgement treated each authority
Sasikala T.V and another v. C.P JosephRelied on¶27
Sasikala T.V and another v. C.P Joseph [2021 (1) KHC 23]
1 provisions across 1 enactments
RAJU BHASKARAN and SUJATHA RAJU
RAJ MOHAN
C.S. DIAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
C.S. DIAS
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