High Court dismissed Writ Petition under Article 227 challenging order refusing amendment. Court held where amendment changes nature of suit and reliefs become infructuous due to property destruction, amendment must be disallowed.
Original Petition under Article 227 dismissed; order impugned in I.A.No.3/2022 dismissed.
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 MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 6TH DAY OF DECEMBER 2022 / 15TH AGRAHAYANA, 1944
OP(C) NO. 2366 OF 2022
AGAINST THE ORDER DATED 11.10.2022 IN I.A.NO.03/2022 IN
O.S.NO.1356/2019 OF I ADDITIONAL MUNSIFF COURT, ERNAKULAM
PETITIONER/PETITIONER IN I.A.NO.03/2022/PLAINTIFF:
THYKOODAM EDAVAKA CHRISTEEYA SANGAM
HAVING ITS OFFICE AT ROOM NO 51/533, ST RAPHAEL'S
CHURCH COMPLEX, THYKOODAM, VYTTILA, PIN 682 019
REPRESENTED BY IT SECRETARY, K R JOSEPH, AGED 71 YEARS,
S/O RAPHAEL
BY ADVS.SRI.LAL K.JOSEPH
SRI.P.MURALEEDHARAN (THURAVOOR)
SRI.T.A.LUXY
SRI.SURESH SUKUMAR
SRI.ANZIL SALIM
SRI.ADITHYA S. PUTHEZHATH
SRI.AKASH GEORGE
SRI.MUHAMMED YAHIYA
RESPONDENTS/RESPONDENTS IN I.A.NO.03/2022/DEFENDANTS:
1ST RAPHAEL'S CHURCH,
THYKOODAM, VYTTILA, PIN 682 019. REPRESENTED BY ITS
PARISH PRIEST REV.FR JHONSON D' KUNHA, PIN - 682019
2KERALA STATE ELECTRICITY BOARD LIMITED
OFFICE OF ELECTRICAL SECTION OFFICE, POWER HOUSE,
VYTTILA, PIN 682 019
REPRESENTED BY ITS ASST. ENGINEER.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 6th day of December, 2022
This Original Petition is filed under Article 227 of the Constitution of India. The original petitioner is none other than the petitioner in I.A.No.03/2022 where the impugned order was passed and plaintiff in O.S.No.1356/2019 where the above I.A was filed. The respondents are the respondents in the I.A referred to above and the defendants in the above referred suit. True copies of the plaint in the above suit, I.A.No.7632/2019 seeking interim prohibitory injunction, commission report filed in I.A.No.7633/2019, written statement filed in the Suit, I.A.No.9146/2019, order passed by the court below on 09.11.2021 in I.A.No.9146/2019, I.A.No.3/2022 filed by the petitioner, counter filed by the respondent and order passed in I.A.No.3/2022 produced alongwith the Original Petition on hand are Exts.P1 to P9.
2. Following are the reliefs sought in Ext.P1:
“a. Pass a Permanent Prohibitory Injunction restraining the 1st defendant, its men and agent from forcefully evicting the plaintiff
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from the plaint schedule property without resorting to any due process of law,
b. Pass a Permanent Prohibitory Injunction restraining the 1st defendants, their men and agent from committing any mischief, trespass or any other illegal acts detrimental to the interest of the plaintiff in occupying and peacefully enjoying the plaint schedule property.
c. Pass a judgment and decree by way of Mandatory Injunction directing the 2nd defendant to reinstate the electricity connection with Consumer No.1155560000939 in the Plaint Scheduled property.
d. Such other orders which this Hon’ble Court deems fit and proper in the interest of justice.”
The cause of action was stated in Ext.P1 to have originated on March 2019, when the 1st respondent proclaimed that he would demolish the entire school building including the plaint schedule building and on 09.10.2019 when the office bearers of the 1st respondent including the Vicar threatened the office bearers of the petitioner that after demolition of the
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plaint schedule property and the school building, some more economically beneficial building would be constructed in it’s place and when surrender of the vacant possession of the plaint schedule building was demanded and on 19/10/2019 when the electricity connection to the plaint schedule building was disconnected and refused to restore it.
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respondent who filed caveat entered appearance before the court through his counsel and undertaken that he will not demolish the plaint schedule property. The court did not record it, but, on the basis of the oral undertaking made by the 1st respondent, instructed the Advocate Commissioner appointed by it in I.A.No.7633/2019 to inspect the property on the day itself and to report the matters on the succeeding day.
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had also admitted the factum in the written statement filed on 25.10.2019 in the Original Suit pending, true copy of which is Ext.P4. Thereupon I.A. No. 9146/2019 was filed by the petitioner in the Suit with a prayer to restore the status quo as on date of filing of the O.S.
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change in the character of the Suit as a whole liable to be brought in by the amendment proposed. As per the pleadings now sought to be incorporated, the plaint schedule building is completely destroyed and the relief sought in the context is to undo the activities alleged as preformed by the henchmen of the 1st respondent by reconstructing the same.
“(i) Order II Rule 2 CPC operates as a bar against a
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subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview.
The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
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sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pinpointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case,
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foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. ”
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allowed the chamber summons keeping the issue of limitation kept open for consideration and permitting the defendant to file additional written statement. The defendant who was the appellant before the High Court filed appeal before a Division Bench of the High Court which came to be dismissed. The
order of dismissal was challenged before the Apex Court and was dismissed. The dictum of the Apex Court contained in paragraph 58 of the judgment supra is extracted hereunder :
“58. Section 22 has a non-obstante provision which overrides the CPC. A plaintiff who claims specific performance of a contract for the transfer of immovable property, may in an appropriate case ask for possession, partition and separate possession of the property, in addition to specific performance. The plaintiff may also claim any other relief including the refund of earnest money or deposit paid, in case the claim for specific performance is refused. Corresponding to the provisions of sub-section (5) of Section 21 , sub-section (2) Section 22 stipulates that such relief cannot be granted by the court unless it has been specifically claimed. However, the proviso requires that the court shall at any stage of the proceedings allow the plaintiff to amend the plaint to claim such relief where it has not been originally claimed on such terms which may appear just.”
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interfering with the possession of the plaintiff and have also been indulging in various acts of malfeasance to pressurise and pursuade the plaintiff to vacate the shop. Thus a decree for permanent prohibitory injunction was sought against the defendants and also for a mandatory injunction for compelling
the defendants to reconstruct a demolished wall. The defendants in the written statement filed had denied the claim of the plaintiffs and pleaded that the plaintiff had already surrendered vacant possession of the shop on his own accord. An interim injunction was passed by the court in the interlocutory application filed by the plaintiff and thereby the defendants were temporarily restrained from interfering with possession of the property by the plaintiff. During progress of the trial, the plaintiff moved application for contempt in the trial court alleging that the defendant forcibly turned out the plaintiff from the shop and thereby the interim order of the court was flouted. The plaintiff did not seek for amendment of the plaint in the suit filed by him based on subsequent events alleged by him in the contempt proceedings. The trial court found on conclusion of the trial in the suit that the contention
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of the defendant on vacant surrender of the shop room by the plaintiff was not established.
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“It is true that the court can take notice of subsequent events but in that case the plaintiff must invite attention of the court to the altered circumstances and ask for appropriate relief. Where in a suit for declaration in which the plaintiff claims a right to a legal character in respect of certain property and in the course of litigation he is dispossessed, the court cannot, if the right claimed is adjusted in his favour, ipso facto on its own grant relief of possession in his favour without asking him to amend the plaint and add consequential relief in the plaint as the granting of such a relief would be inconsistent with the pleadings of the parties and would also be inconsistent with the averments as disclosed in the pleadings of parties, In the same way where a plaintiff in a suit for permanent injunction is dispossessed by the defendant during the pendency of the suit, the court can no doubt take notice of this subsequent event but it has no power under Order 7 rule 7 to grant relief of possession to the plaintiff without notice to the defendant and without asking the plaintiff to amend the plaint. It is to meet such situations that Order 6 Rule 17 has been engrafted in the Code of Civil Procedure to enable a party to seek amendment of its pleadings. That Rule does empower the court to allow either party to alter or amend its plaint or written statement in such manner and in such terms as may be just and all such amendments can be made as may be necessary for the purpose of determining the real questions in controversy between the parties. This can be done at any stage of the proceedings. In my opinion therefore the proper course
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for the plaintiff was to apply for amendment and to seek the consequential relief. The Court could thereby raise an appropriate issue in the case and go into that question which was vital for the decision of the case.”
found the trial court unjustified in passing a decree for possession in the case, without the party opting to incorporate
the pleas on changes in circumstances by way of amendment and mould the reliefs accordingly. It is true from the dictum that necessary amendment can be brought in the plaint by way of amendment.
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dismissed as infructuous. The court below has already stated in the order passed in I.A No.9146 of 2019 that the reliefs sought in the plaint has become infructuous. A suit in which the reliefs already sought have become infructuous in view of changes in circumstances, cannot be made live by incorporating new pleadings, new cause of actions and new reliefs. Plaintiff can opt to file a fresh Suit seeking for the reliefs now sought to be incorporated by way of amendment of the plaint, subject to the limitation period. The application seeking amendment has been properly disallowed by the court below. The order impugned is maintainable in all respects as it does not suffer from the vice of illegality, impropriety and infirmity as contended by the Original Petitioner.
Original Petition (C) stands dismissed for the reasons and the impugned order stands maintained.
MARY JOSEPH
MJL
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A PPENDIX OF OP(C) 2366/2022
PETITIONER’S EXHIBITS:
EXHIBIT P1TRUE COPY OF THE PLAINT
O.S.NO.1356/2019 FILED BY THE
PETITIONER BEFORE THE 1ST ADDITIONAL
MUNSIFF'S COURT, ERNAKULAM ON
25/10/2019.
EXHIBIT P2TRUE COPY OF THE I A NO. 7632/2019 IN
O.S. 1356/2019 FOR AN INTERIM
PROHIBITORY INJUNCTION FILED BY THE
PETITIONER ON 25/10/2019.
EXHIBIT P3TRUE COPY OF THE COMMISSION REPORT
DATED OCTOBER, 2019 IN I.A. 7633/2019
IN O.S. 1356/2019 FILED BY THE
ADVOCATE COMMISSIONER BEFORE THE
MUNSIFF COURT, ERNAKULAM.
EXHIBIT P4TRUE COPY OF THE WRITTEN STATEMENT
DATED 14-3-2020 IN O.S. 1356/2019
FILED BY THE 1ST RESPONDENT BEFORE THE
MUNSIFF COURT ERNAKULAM.
EXHIBIT P5TRUE COPY OF THE I A NO. 9146/2019 IN
O.S. 1356/2019 FILED BY THE PETITIONER
ON 20/12/2019 BEFORE THE MUNSIFF
COURT, ERNAKULAM.
EXHIBIT P6TRUE COPY OF THE ORDER DATED 9/11/2021
IN EXT.P5 PASSED BY THE 1ST ADDITIONAL
MUNSIFF COURT, ERNAKULAM.
EXHIBIT P7TRUE COPY OF THE I A NO. 3/2022 IN
O.S. 1356/19 FILED BY THE PETITIONER
ON 6/1/22.
EXHIBIT P8TRUE COPY OF THE COUNTER IN EXT.P7
SUBMITTED BY THE 1ST RESPONDENT ON
30/7/2022 .
EXHIBIT P9TRUE COPY OF THE ORDER IN EXT.P7 DATED
11-10-2022 PASSED BY THE 1ST
ADDITIONAL MUNSIFF COURT, ERNAKULAM.
RESPONDENTS’ EXHIBITS: NIL
//TRUE COPY//
P A TO JUDGE
3 issues framed by the court
Whether an amendment prayer which changes the character, cause of action, and reliefs of a suit can be allowed under Order 6 Rule 17 CPC.
Whether a suit for injunction decided against reliefs which have become infructuous due to destruction of the subject property can be revived by amendment.
Whether the High Court erred in dismissing the Original Petition under Article 227 challenging the below court's refusal to allow amendment.
Colour shows how this judgement treated each authority
Muhd. Sultan Wani v. Qasim Ali and othersReferred¶10
Muhd. Sultan Wani v. Qasim Ali and others [AIR 1977 J&K 21] · Who else cites this
Life Insurance Corporation of India v. San jeev Builders Pvt. Ltd and anotherReferred¶10
Life Insurance Corporation of India v. San jeev Builders Pvt. Ltd and another [2022 SCC Online SC 1128] · Who else cites this
KERALA STATE ELECTRICITY BOARD LIMITED
MARY JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court