Dismissed

Sreekumaran @ Sreekumaran.B. v. Sudevan

Kerala HC4 Sept 2023OP(C)/455/2023

Case brief

AI extract

What is this about?

Original Civil Petition filed to set aside an order rejecting an application to amend a plaint. The petitioner sought to remove lines forming an admission. The High Court found the amendment altered the suit's nature as removing an admission and did not fault the impugned order, though reservations of liberty were made.

What did the court decide?

Original Civil Petition dismissed, impugned order confirmed, with liberty reserved for appropriate recourse.

Sreekumaran @ Sreekumaran.B. Vs Sudevan — Civil Procedure and Limitation | Kerala HC (2023)

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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 DEVAN RAMACHANDRAN

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MONDAY, THE 4^TH DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945

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OP(C) NO. 455 OF 2023

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AGAINST THE JUDGMENT OS 442/2013 OF II ADDITIONAL MUNSIFF

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COURT, NEYYATTINKARA

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PETITIONER/PETITIONER/PLAINTIFF:

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SREEKUMARAN @ SREEKUMARAN.B., AGED 67 YEARS, SON OF BHASKARA PANICKER, VISHNU BHAVAN, THIRUPURAM DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN - 695133

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K.RAJESH KANNAN P.C.VIJAYAKUMAR

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RESPONDENTS/COUNTER PETITIONERS/DEFENDANTS 2 TO 7:

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1 SUDEVAN, AGED 66 YEARS, SON OF SREEDHARAPANICKER, UDAYAGIRI, KAVUPAZHINJI, THIRUPURAM DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN - 695133

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2 RAMA, AGED 68 YEARS, DAUGHTER OF KRISHNAMMA, UDAYAGIRI, KAVUPAZHINJI, THIRUPURAM DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN - 695133

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3 RADHA, AGED 67 YEARS, DAUGHTER OF KRISHNAMMA, UDAYAGIRI, KAVUPAZHINJI, THIRUPURAM DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM - 695133

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4 SHEELA, DAUGHTER OF SUSEELA, UDAYAGIRI, KAVUPAZHINJI, THIRUPURAM DESOM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN - 695133

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5 ANEESH, SON OF BHASI, UDAYAGIRI, KAVUPAZHINJI, THIRUPURAM DESOM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN - 695133

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6 ASWATHY, DAUGHTER OF SHEELAKUMARI, UDAYAGIRI, KAVUPAZHINJI, THIRUPURAM DESOM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN - 695133

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OP(C) NO. 455 OF 2023

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BY ADVS. G.P.SHINOD GOVIND PADMANAABHAN(K/925/2010) AJIT G ANJARLEKAR(K/000083/2014) ATUL MATHEWS(K/1675/2018) GAYATHRI S.B.(K/2005/2020)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO. 455 OF 2023

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JUDGMENT

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The petitioner impugns Ext.P6 judgment, through which, the learned Munisiff, Neyyattinkara, has rejected his plea for amendment of the plaint in O.S.No.442/2013, in the manner as sought for in Ext.P4 application. The petitioner explains that what has been attempted through Ext.P4 is only to rectify a discrepancy in the pleadings and therefore, that the learned Trial Court ought to have allowed it, instead of having weighed it down on a technical objection that this was not done when earlier opportunities were available to him. He thus prays that Ext.P6 be set aside and the learned Trial Court be directed to allow Ext.P4, thus authorising the amendments as sought therein.

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Sri.K.Rajesh Kannan – learned counsel for the petitioner, vehemently argued that his client only wants to correct the pleading and nothing more; and therefore, that the reasons stated in Ext.P6 by the learned Trial Court are untenable. He argued that, unless the amendment is allowed, the cause projected by his client before the Trial Court itself would be jeopardized, because the defendants are

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now trying to rely upon a mistake committed in the pleadings. He thus reiteratingly prayed that this Original

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OP(C) NO. 455 OF 2023

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Petition be allowed.

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Smt.Gayathri S.B. - learned counsel for the respondents/defendants, refuted the afore submissions of Sri.K.Rajesh Kannan, saying that, as evident from Ext.P4, what is being attempted is to remove an admission made by the petitioner in his own pleadings. She argued that this is impermissible and therefore, that the Trial Court was without error in having rejected it through Ext.P6 order. She then pointed out that the petitioner had, in fact, filed three other applications for amendment earlier; two of which were allowed, and one dismissed as being not pressed. She argued that, therefore, the purpose of Ext.P4 is to change the nature of the suit itself, by recanting from an admission made by the plaintiff and that this cannot be permitted.

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I must say that there is great force in the afore submissions of Smt.Gayathri because, as has been rightly found by the learned Munsiff, the amendments sought to be brought through Ext.P4 application is to remove two lines from paragraph 5 of the plaint. Prima facie, these averments appear to be some kind of admission made by the plaintiff; and therefore, if he now has a case that it is on account of an error, he ought to have applied to have it corrected it in the

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OP(C) NO. 455 OF 2023

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manner known to law, rather than by removing the lines, thus altering the nature of the suit itself.

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I cannot, therefore, find fault with Ext.P6 order, though I am certain that the plaintiff must be reserved the liberty available to him in law, to move the Trial Court appropriately.

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I, however, clarify that I have not entered into the merits of any of the rival contentions of the parties, except to the extent above and thus close this original petition, however, with legally available all liberties being reserved to the parties, as authorised in law.

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Sd/- DEVAN RAMACHANDRAN

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JUDGE

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stu

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OP(C) NO. 455 OF 2023

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APPENDIX OF OP(C) 455/2023

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PETITIONER EXHIBITS

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Exhibit P1	TRUE COPY OF THE JUDGMENT DATED 15/7/2022 IN O.P.(C) NO.909/2022 OF THE HON'BLE HIGH COURT OF KERALA
Exhibit P2	TRUE COPY OF THE PLAINT IN O.S. NO.442/2013 DATED 31.5.2013 ON THE FILE OF ADDITIONAL MUNSIFF COURT-II, NEYYATTINKARA
Exhibit P3	TRUE COPY OF THE WRITTEN STATEMENT AND COUNTERCLAIM IN O.S. NO.442/2013 ON THE FILE OF ADDITIONAL MUNSIFF COURT-II, NEYYATTINKARA DATED NIL FILED BY THE DEFENDANTS
Exhibit P4	TRUE COPY OF THE AMENDMENT APPLICATION I.A NO: 11/2022 IN O.S. NO.442/2013 ON THE FILE OF ADDITIONAL MUNSIFF COURT-II, NEYYATTINKARA FILED BY THE PETITIONER/PLAINTIFF
Exhibit P5	TRUE COPY OF THE COUNTER AFFIDAVIT TO I.A. NO.11/2022 IN O.S. NO.442/2013 ON THE FILE OF ADDITIONAL MUNSIFF COURT-II, NEYYATTINKARA DATED NIL
Exhibit P6	TRUE COPY OF THE JUDGMENT DATED 18/1/2023 IN I.A NO:11/2022 IN O.S. NO. 442/2013 OF THE ADDITIONAL MUNSIFF COURT-II, NEYYATTINKARA

Sreekumaran @ Sreekumaran.B. v. Sudevan

Case brief

What is this about?

What did the court decide?

Sreekumaran @ Sreekumaran.B. v. Sudevan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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Case details

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