Dismissed

C.V. Asokan v. C.V. Sasankan

Kerala HC1 Aug 2022OP(C)/923/2022

Case brief

AI extract

What is this about?

Original Petition under Article 226 challenging dismissal of petition for amendment of plaint. High Court held stay on connected suit does not bar filing of amendment petition. Confirmed Additional Munsiff's dismissal of the fourth time amendment plea on merits as allegations were known earlier. Dismissed this appeal.

What the court decided

AI extract

C.V. Asokan Vs C.V. Sasankan — 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

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MONDAY, THE 1ST DAY OF AUGUST 2022 / 10TH SRAVANA, 1944
OP(C) NO. 923 OF 2022

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AGAINST THE ORDER/JUDGMENT IN OS 92/2014 OF ADDITIONAL MUNSIFF
COURT, KOCHI

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PETITIONER/PETITIONER/PLAINTIFF:

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C.V. ASOKAN
AGED 76 YEARS
S/O. LATE VELAYUDHAN,
CHAKKANATTUPADIKKAL, NIKARTHIL HOUSE,
RAJEEV VIKAS COLONY, ULLALA P.O.,
VAIKOM, PIN - 686607
BY ADVS.
LAL K.JOSEPH
ANZIL SALIM
P.MURALEEDHARAN (THURAVOOR)
T.A.LUXY
K.S.SREELY KUMAR
SURESH SUKUMAR
SANJAY SELLEN

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RESPONDENTS/RESPONDENTS/DEFENDANTSS:

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1C.V. SASANKAN
AGED 73 YEARS
S/O. VELAYUDHAN,
CHAKKANATTUPADIKKAL, C.C. 19/1716,
NEAR COCHIN TRADERS, RAMESWARAM
VILLAGE, KOCHI TALUK, PIN - 682507
2C.V. BABU
AGED 70 YEARS
S/O. VELAYUDHAN,
CHAKKANATTUPADIKKAL, C.C. 19/1716,
NEAR COCHIN TRADERS, RAMESWARAM
VILLAGE, KOCHI TALUK, PIN - 682507
3KADAMBARI @ KANAKA
AGED 63 YEARS
W/O. SADANANDAN &
D/O. VELAYUDHAN, VELUTHEDATH HOUSE,
AROOR P.O., PIN - 68853414
4URMILA
AGED 60 YEARS
W/O. GANESAN & D/O. VELAYUDHAN, ASAKANTHARAVELI,
AROOR P.O., PIN - 688534

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OP(C) NO. 923 OF 2022

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BY ADVS.
T.MADHU
C.R.SARADAMANI(S-891)
SHAHID AZEEZ(K/000630/2015)
RESHMA SANTHOSH(K/001808/2019)
RENJISH S. MENON(K/001486/2021)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
01.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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OP(C) NO. 923 OF 2022

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JUDGMENT

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Dated this the 1^st day of August, 2022

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This is an Original Petition filed under Article 227 of the Constitution of India by the petitioner, who is the plaintiff in O.S.No.92/2014 on the files of the Additional Munsiff Court, Kochi.

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The learned Additional Munsiff, dismissed I.A.No.2/2022 dated 06.04.2022, whereby the relief of amendment sought for by the petitioner to incorporate a plea in the matter of Patta issued in the name of the first respondent has been found against.

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The first respondent alone appeared in this matter, though the other respondents are also given notice.

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Heard the learned counsel for the petitioner as well as the learned counsel appearing for the first respondent.

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OP(C) NO. 923 OF 2022

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In this matter, the petitioner herein filed O.P.(C).

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No.2616/2018 challenging order in I.A.2279/2018 and this Court delivered judgment in the above original petition as on 11.01.2022. As per paragraph No.6 of the judgment, this Court finally directed the trial court to dispose of both Suits within a period of six months. After pronouncing the said judgment on 11.01.2022, the petitioner filed I.A.No.2/2022 on 25.02.2022, seeking amendment of the plaint on the allegation that “after the death of mother Ammu Velayudhan, the 1^st defendant obtained Patta No.L1-1913/2006 dated 27.02.2007 in his name. The said Patta is obtained by the 1^st defendant on behalf of all the legal heirs of late Ammu Velayudhan and the 1^st defendant does not have any exclusive right over the plaint schedule property other than that of a co owner along with the plaintiff and other defendants. Even though the Patta was issued in the name of the 1^st defendant, it cannot be considered as a proof of his exclusive possession of the plaint schedule property. The Patta is issued considering

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OP(C) NO. 923 OF 2022

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5

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the long possession of the mother Late Ammu Velayudhan who was the owner of the residential building situated in the plaint schedule property which was a puramboke land. The mere obtaining of the Patta by the 1^st defendant in his name will not any way affect the legal rights of the plaintiff and other defendants over the plaint schedule property as the legal heirs of Ammu Velayudhan, who was the person in possession of the plaint schedule property. If the plaintiff had applied or obtained Patta behind the back of the mother or other co owners, it will not confer him any absolute title or right over the plaint schedule property. The 1^st defendant is only having right in the plaint schedule property equal to that of the plaintiff and other defendants”.

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The first respondent filed objection and resisted the petition. The learned Additional Munsiff considered the petition on merits and finally dismissed the same, holding that this is the fourth amendment petition filed by the plaintiff in this case and the allegation in the petition

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OP(C) NO. 923 OF 2022

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6

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warranting amendment is a matter known to the petitioner much before. Therefore, the learned Additional Munsiff dismissed the application.

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While challenging the above order, the learned counsel for the petitioner urged that though the present amendment application was filed on 25.02.2022, in the written statement filed in the connected Suit, viz., O.S.No.89/2014, this contention has been taken in paragraph No.10.

¶34

On perusal of the same, in the written statement filed by the petitioner, who is the defendant in O.S.No.89/2014, on 16.10.2015, this contention seen taken. However, the petitioner not cared to incorporate the said amendment in O.S.No.92/2014 even after knowing the said fact, admittedly, during October, 2015 itself. It is argued by the learned counsel for the petitioner that the said issue is very relevant to decide the matter in controversy and therefore, the amendment is liable to be

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OP(C) NO. 923 OF 2022

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allowed.

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Dispelling this contention, the learned counsel for the first respondent referred the affidavit in support of I.A.2/2022 in O.S.No.92/2022, whereby the petitioner admitted the fact that even though these facts came to the knowledge of the plaintiff/petitioner much before, he could not file the petition for amendment since the proceedings in the above Suit was stayed by this Court in O.P.(C).No.2616/2018. I do not think that if the proceedings in a Suit is stayed by this Court, that stay could operate in the matter of filing a petition by one of the litigating parties before the Court. To be more precise, staying further proceedings in a Suit does not mean that the parties are restrained from filing necessary applications for the smooth conduct of the case before the trial Court. By staying the Suit, any subsequent orders thereon alone is restrained. Therefore, the justification given by the petitioner to incorporate the amendment in a petition filed for the fourth time cannot be justified.

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OP(C) NO. 923 OF 2022

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8

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Therefore, I am of the view that the learned Additional Munsiff rightly dismissed the application. I do endorse the said finding.

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However, it is brought to the notice of this Court that the other Suit, O.S.No.89/2014, is a Suit filed by the first respondent for permanent prohibitory injunction, asserting title over the entire property based on the Patta issued in his name. In the said Suit, the contention raised by the petitioner in the written statement also is a matter of adjudication. The dismissal of this petition shall not be a bar for the learned Additional Munsiff to address the contention of the written statement in a case involving joint trial of both matters.

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Observing so, this original petition stands dismissed confirming Ext.P15 order impugned.

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Sd/-

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A. BADHARUDEEN JUDGE

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nkr

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OP(C) NO. 923 OF 2022

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APPENDIX OF OP(C) 923/2022

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`PETITIONER EXHI` `Exhibit P1`	`BITS` `TRUE COPY OF THE` `DATED 1/3/2014 FI` `ADDITIONAL MUNSIF`	`PLAINT O.S 92/2014` `LED BEFORE THE` `F COURT, KOCHI.`
`Exhibit P2`	`TRUE COPY OF THE` `DATED 24/6/2015 I` `THE 1ST DEFENDANT`	`WRITTEN STATEMENT` `N EXBT P1 FILED BY` `.`
`Exhibit P3`	`TRUE COPY OF THE` `DATED 28/2/2014 F` `RESPONDENT AGAINS` `THE OTHER RESPOND`	`PLAINT O.S 89/2014` `ILED BY THE 1ST` `T THE PETITIONER AND` `ENTS.`
`Exhibit P4`	`TRUE COPY OF THE` `DATED 16/10/2015` `THE PETITIONER.`	`WRITTEN STATEMENT` `IN EXBT P3 FILED BY`
`Exhibit P5`	`TRUE COPY OF THE` `IN C.M.A 7/14 IN` `92/2014 OF THE SU` `COURT, KOCHI`	`ORDER DATED 24/9/2014` `I.A 513/2014 IN O.S.` `BORDINATE JUDGES`
`Exhibit6`	`TRUE COPY OF THE` `COMMISSIONER'S RE` `IN I.A 514/14 IN`	`ADVOCATE` `PORT DATED 4/3/2014` `O.S. 92/2014.`
`Exhibit P7`	`TRUE COPY OF THE` `8/9/2018 IN O.S.` `PETITIONER.`	`I.A 2155/18 DATED` `92/2014 FILED BY THE`
`Exhibit P8`	`TRUE COPY OF THE` `6/9/2018 IN O.S.` `PETITIONER.`	`I.A 2156/18 DATED` `92/2014 FILED BY THE`
`Exhibit P9`	`TRUE COPY OF THE` `92/2014 FILED BY`	`I.A.2279/18 IN O.S.` `THE PETITIONER.`
`Exhibit P10`	`TRUE COPY OF THE` `IN I.A 2155/18 IN` `MUNSIFF COURT, KO`	`ORDER DATED 5/10/2018` `O.S. 92/2014 OF THE` `CHI.`
`Exhibit P11`	`TRUE COPY OF THE` `IN I.A 2156/18 IN` `MUNSIFF COURT, KO`	`ORDER DATED 5/10/2018` `O.S. 92/2014 OF THE` `CHI.`
`Exhibit P12`	`TRUE COPY OF THE` `11/1/2022 IN OP (`	`JUDGMENT DATED` `C) 2616/2018.`
`Exhibit P13`	`TRUE COPY OF THE` `92/2014 FILED BY`	`I.A 2/2022 IN O.S.` `THE PETITIONER ON`

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OP(C) NO. 923 OF 2022

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10

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25/2/2022 FOR AMENDING THE PLAINT.
Exhibit P14THE TRUE COPY OF THE COUNTER IN
EXT.P13 DATED 30/3/2022 FILED BY THE
RESPONDENT.

¶54

Exhibit P15TRUE COPY OF THE ORDER DATED 6/4/2022
IN I.A 2/2022 IN O.S. 92/2014.

C.V. Asokan v. C.V. Sasankan

Case brief

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C.V. Asokan v. C.V. Sasankan

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