Dismissed

Gireeshkumar v. Sanal Kumar

Kerala HC27 May 2022OP(C)/688/2022

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an Article 227 petition challenging the Munsiff Court below's refusal to allow a third amendment to the plaint schedule after trial commenced. Upholding the lower court, the Court held that amendments must be justified in the supporting affidavit, and Rule 17's proviso requires proving due diligence.

What did the court decide?

Writ petition was dismissed as it lacked merit; the impugned order disallowing the third amendment was upheld.

Gireeshkumar Vs Sanal Kumar — Property and Title | Kerala HC (2022)

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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 A. BADHARUDEEN FRIDAY, THE 27^TH DAY OF MAY 2022 / 6TH JYAISHTA, 1944

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OP(C) NO. 688 OF 2022

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IN RESPECT OF ORDER DATED 04.01.2022 IN IA NO.487/2021 IN OS 337/2015 OF MUNSIFF COURT, MAVELIKKARA

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PETITIONER/PETITIONER/PLAINTIFF :

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GIREESHKUMAR, AGED 58 YEARS, S/O. NARAYANA PILLAI, THUNDATHIL SARANYA BHAVANAM, ORIPORAM MURI, CHENNITHALA VILLAGE, ALAPPUZHA DISTRICT, PIN - 690105

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BY ADVS. B.RENJITHKUMAR CLARA SHERIN FRANCIS

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RESPONDENTS/COUNTER PETITIONS/DEFENDANTS :

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1 SANAL KUMAR, AGED 67 YEARS, S/O. NARAYANA PILLAI, VILAYILPARAMBIL HOUSE, ORIPORAM MURI, CHENNITHALA VILLAGE, ALAPPUZHA DISTRICT, PIN - 690105

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2 SUJATHA KUMARI, AGED 55 YEARS, W/O. SANAL KUMAR, VILAYILPARAMBIL HOUSE, ORIPORAM MURI, CHENNITHALA VILLAGE, ALAPPUZHA DISTRICT, PIN - 690105 BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW(K/1557/2003)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C)No.688 of 2022

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“CR”

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A.BADHARUDEEN, J.

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O.P.(C)No.688 of 2022

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------------------------------------------------------------

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Dated this the 27^th day of May, 2022

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J U D G M E N T

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This is an original petition filed under Article 227 of the Constitution of India by the plaintiff in O.S.No.337 of 2015 aggrieved by the order in I.A.No.487 of 2021 dated 04.01.2022 in the above case. Respondents herein are the defendants in the above suit.

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The questions emerge for consideration in

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this matter are as under;

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(1) Can a party to a civil suit seek

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amendments to their pleadings without narrating and justifying sufficient foundation to get the amendment

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O.P.(C)No.688 of 2022

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allowed?

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(2) Is it permissible to allow amendments

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without justifying the same in the affidavit in support of the amendment petition?

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Admittedly, after commencement of trial, the plaintiff herein filed I.A.No.487 of 2021 and sought for three amendments to be carried out in the plaint. As per the order impugned, the learned Munsiff allowed amendments 1 and 2, as sought for, while disallowing the amendment sought for as item No.3 in the amendment petition.

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It is submitted by the learned counsel for the petitioner that, initially, the property of the defendants excluding two cents on the eastern side was scheduled and this mistake was not noticed till commencement of trial. On getting notice of the same, the petitioner filed amendment petition to incorporate the said omission by

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O.P.(C)No.688 of 2022

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scheduling the property of the defendants as 3.42 ares instead of 1.65 ares originally scheduled.

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According to the learned counsel for the petitioner, if the amendment sought for is not allowed, the purpose of the suit itself would be defeated. However, when the learned counsel for the petitioner was asked to justify the necessity of the third amendment with reference to the averments in the affidavit in support of the amendment petition, the learned counsel failed to point out substantive or even evasive averments in the affidavit in support of the amendment petition or the foundation for the amendment as sought for.

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It is argued by the learned counsel for the respondents that the amendment sought for, after commencement of trial, shall be subject to the proviso to Order 6 Rule 17, despite that the court below allowed prayer Nos.1 and 2 in the amendment, since there was

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O.P.(C)No.688 of 2022

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foundation for the same in the original plaint itself and in the affidavit in support of the amendment petition. He submitted further that, but, nothing stated in the affidavit in support of the amendment petition justifying the amendment of schedule of the defendants property in any manner. According to the learned counsel, for this reason alone, the amendment sought for could not be allowed and the court below rightly done so. He submitted further that the dispute in between the plaintiff and defendants in the matter of fixation of boundary of the properties, which were originally obtained by a partition deed and subsequently, exchanged by executing respective exchange deeds between them, is the subject matter of adjudication in the suit.

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According to the learned counsel for the respondents, the extent of property covered by the exchange deed, for which, the boundary, sought to be

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O.P.(C)No.688 of 2022

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fixed, is only to an extent of 1.65 ares which was originally scheduled in the plaint and now the attempt of the plaintiff is to incorporate two cents more property lying on the eastern side of 1.65 ares of property, which is not a subject matter of the exchange deed. He also submitted that even in the plaint or in the affidavit in support of the petition, no one could found any foundation to substantiate the amendment and thus the amendment sought for as item No.3 is without any base and accordingly, the court below rightly disowned the same. He also submitted that, accepting the order impugned, the petitioner carried out two amendments allowed, on 24.02.2022, and the defendants filed additional written statement also in view of the incorporation of the said amendment.

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It is submitted by the learned counsel for the petitioner that the apprehension of the

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O.P.(C)No.688 of 2022

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plaintiff/petitioner should be given emphasis and in the interest of justice, the amendment is liable to be allowed.

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It is true that the parties to a civil suit can carryout amendment of their respective pleadings and the intent behind Order 6 Rule 17 of the Code of Civil Procedure is to address the real grievance of the parties and to decide the dispute finally. Thus, all amendments which are necessary in the interest of justice shall be allowed to address the matter in controversy and to give a quietus to the litigation. However, the liberal view in the matter of amendment is restricted by the proviso to Order 6 Rule 17 when amendment got canvassed, after commencement of trial. Proviso to Order 6 Rule 17 imposes a duty on the Court when amendment sought for after commencement of trial and it is provided therein that no application for amendment shall be allowed, after the trial has commenced, unless the Court comes to the

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O.P.(C)No.688 of 2022

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conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial.

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In this matter, as rightly argued by the learned counsel for the respondents and as could be read out from the averments in the affidavit in support of the amendment petition, no foundation to see the necessity of amendment sought for as item No.3 in the petition could be found out though the said amendment was canvassed after commencement of trial. In this context, it is held that a party to a civil suit cannot seek amendments to their pleadings without narrating and justifying sufficient foundation to get the amendment allowed and without convincing the Court regarding the necessity of amendment. Similarly, it is not permissible to allow amendments without justifying the same in the affidavit in support of the amendment petition. It is held further that

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O.P.(C)No.688 of 2022

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after commencement of trial, without complying the satisfaction mandated by proviso to Order 6 Rule 17 CPC, amendment cannot be allowed.

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The upshot of the above discussion is that the learned Munsiff rightly dismissed the application insofar as amendment No.3 sought for therein. Going by the order, I do not find any illegality, perversity or arbitrariness to interfere with the impugned order, in a petition filed under Article 227 of the Constitution of India. Therefore, this original petition lacks merit and the same deserves dismissal.

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Accordingly, this original petition is dismissed.

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Sd/-

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A.BADHARUDEEN, JUDGE

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rkj

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O.P.(C)No.688 of 2022

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APPENDIX OF OP(C) 688/2022

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PETITIONER EXHIBITS

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Exhibit1 TRUE COPY OF THE ORDER IN IA NO. 487/2021 IN OS 337/2015 IN THE FILE OF MUNSIFF COURT, MAVELIKKARA

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Exhibit2 TRUE COPY OF THE PLAINT IN OS 337/2015 IN THE FILE OF MUNSIFF COURT, MAVELIKKARA

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Exhibit3 TRUE COPY OF THE WRITTEN STATEMENT DATED 3.2.2016 FILED BY THE DEFENDANT

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Exhibit4 TRUE COPY OF THE AMENDMENT APPLICATION DATED 1.11.2021 IN IA 487/2021 FILED BY THE PETITIONER

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Exhibit5 TRUE COPY OF THE OBJECTION DATED 17.11.2021 FILED BY THE 1ST RESPONDENT

Gireeshkumar v. Sanal Kumar

Case brief

What is this about?

What did the court decide?

Gireeshkumar v. Sanal Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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