Dismissed

Dalbi Emmanuel v. Bastin Cherian

Kerala HC12 Mar 2024OP(C)/143/2024

Case brief

AI extract

What is this about?

Defendant challenged an amendment to a plaint adding plaintiffs' post-institution purchase of the property and sought rejection of the plaint under Order VII Rule 11(a), citing a Supreme Court decision on injunction suits by agreement holders. The High Court dismissed both challenges, holding subsequent events can cure such defects and that the cited decision did not apply since suit was against a

What did the court decide?

Both OP(C)s dismissed; 2nd Additional Munsiff Court, Ernakulam directed to dispose of IA No.9/2023 within one month.

Dalbi Emmanuel Vs Bastin Cherian — Property and Title | Kerala HC (2024)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

¶4

TUESDAY, THE 12TH DAY OF MARCH 2024 / 22ND PHALGUNA, 1945

¶5

OP(C) NO. 143 OF 2024

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 ORDER DATED 12.01.2024 IN IN IA 20 OF 2023 IN OS NO.300 OF
2023 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM

¶7

PETITIONER/PETITIONER/DEFENDANT:

¶8

DALBI EMMANUEL
AGED 46 YEARS
S/O EMMANUEL, 2ND FLOOR, EMMANUEL ARCADE,
PROVIDENCE ROAD, ERNAKULAM, PIN – 682 018
BY ADVS.
SHIJU VARGHESE
SACHU THOMAS

¶9

RESPONDENTS/RESPONDENTS/PLAINTIFFS:

¶10

1 BASTIN CHERIAN AGED 32 YEARS, S/O CHERIAN, RESIDING AT 1ST FLOOR ANS APARTMENT, AMULYA STREET, COCHIN, ERNAKULAM, PIN – 682 018

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2 ALDA BASTIN AGED 29 YEARS, W/O BASTIN CHERIAN,RESIDING AT 1ST FLOOR ANS APARTMENT, AMULYA STREET, COCHIN, ERNAKULAM, PIN – 682 018 BY ADVS. Mathew John ABY J AUGUSTINE(K/000302/2018)

¶12

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2024,
ALONG WITH OP(C).2291/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

¶13

O.P.(C).Nos. 2291 of 2023 and 143 of 2024

¶14

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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 C. JAYACHANDRAN
TUESDAY, THE 12TH DAY OF MARCH 2024 / 22ND PHALGUNA, 1945
OP(C) NO. 2291 OF 2023

¶18

 ORDER DATED 12.10.2023 IN IA 12 OF 2023 IN OS NO.300 OF 2023
OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM

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PETITIONER/RESPONDENT/DEFENDANT:

¶20

DALBI EMMANUEL
AGED 46 YEARS
S/O EMMANUEL, 2ND FLOOR, EMMANUEL ARCADE,
PROVIDENCE ROAD, ERNAKULAM, PIN – 682 018
BY ADVS.
SHIJU VARGHESE
SACHU THOMAS

¶21

RESPONDENTS/PETITIONER/PLAINTIFF:

¶22

1BASTIN CHERIAN
AGED 32 YEARS, S/O CHERIAN, RESIDING AT 1ST FLOOR
ANS APARTMENT, AMULYA STREET, COCHIN-18,
PIN – 682 018

¶23

2 ALDA BASTIN AGED 29 YEARS, W/O BASTIN CHERIAN,RESIDING AT 1ST FLOOR ANS APARTMENT, AMULYA STREET, COCHIN-18, PIN – 682 018

¶24

BY ADVS.
Mathew John
ABY J AUGUSTINE(K/000302/2018)

¶25

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2024,
ALONG WITH OP(C).143/2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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O.P.(C).Nos. 2291 of 2023 and 143 of 2024

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¶28

JUDGMENT

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Dated, this the 12^th day of March 2024

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The Original Petition first above referred is
preferred challenging Ext.P8 order, which allowed an
application for amendment of the plaint. The
Original Petition second above referred is one filed
challenging Ext.P10 order, which refused an
application for rejection of the plaint under Order
VII, Rule 11(a) of the Code of Civil Procedure. Both
these Original Petitions are preferred at the
instance of the defendant in the suit,
O.S.No.300/2023, pending before the Additional
Munsiff Court, Ernakulam.

¶31

2.Heard the learned counsel appearing for the
respective parties.

¶32

3.In sofar as O.P.(C).No.2291/2023 is concerned,
the grievance of the petitioner is that the

¶33

O.P.(C).Nos. 2291 of 2023 and 143 of 2024

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amendment will alter the very nature and character
of the suit. The above submission is made in the
backdrop of the following facts and circumstances:

¶36

The suit was one filed for an injunction
restraining the defendant(petitioner herein) from
trespassing into the common area described as plaint
B Schedule property and from obstructing the
plaintiffs from enjoying plaint B Schedule Property
etc. The plaintiffs were claiming under an agreement
for sale, wherefore, the suit was resisted on the
premise that they have locus, as on the date of
filing the suit, since they are strangers. The suit
ought to have been filed by the real owner, was the
contention raised. An application for rejection of
the plaint for want of cause of action was also
filed. Within seven days from the date of
institution of the suit, the plaintiffs purchased
the scheduled property as per the agreement for sale

¶37

and sought for the subject amendment, so as
to incorporate certain pleadings based on the

¶38

¶39

O.P.(C).Nos. 2291 of 2023 and 143 of 2024

¶40

subsequent purchase, without there being any
corresponding change to the relief sought for in the
plaint originally. The amendment was allowed vide
Ext.P8 order. According to the petitioner/defendant,
the amendment changes the very nature and character
of the suit.

¶41

4.This court cannot endorse the submissions made
by the learned counsel for the petitioner. It is
true that the suit was filed when the plaintiffs
were only prospective purchasers, under an agreement
for sale, of the scheduled property. The building is
a three storied one, of which the ground floor as
well as the first floor were agreed to be conveyed
to the respondents/plaintiffs. The defendant in suit
(petitioner herein) was the owner of the second
floor of the property. It was contended that the
plaintiffs cannot maintain the suit only on the
strength of an agreement for sale. Within seven days
from the date of filing the suit, the plaintiffs

¶42

O.P.(C).Nos. 2291 of 2023 and 143 of 2024

¶43

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purchased the property as per a sale deed executed
by the real owner. It will be too far-fetched to
construe that allowing such an amendment to
incorporate the subsequent event will alter the
nature and character of the suit. It is true that

¶45

at the time of filing the suit, the
plaintiffs/respondents had only the prospects of
becoming the owner of the property on the strength
of an agreement for sale. And, after the execution
of the sale, they became the complete owners. It
cannot be said that the defendant(the petitioner
herein) had a vested right to get the suit dismissed
based on the so called infirmity of the plaintiffs
as on the date of filing the suit. It is settled
that subsequent events can also be reckoned for the
purpose of amendment of the suit, as also, for
deciding the maintainability of the suit in the
context of Order VII, Rule 11. In the circumstances,
the challenge posed in O.P.No.2291/2023 will stand
dismissed.

¶46

O.P.(C).Nos. 2291 of 2023 and 143 of 2024

¶47

¶48

5.ComingtoO.P.No.143/2024,the

¶49

petitioner/defendant is relying upon on the judgment
of the Honourable Supreme Court, produced at Ext.P7
inShakeel Ahammad v. Sayed Aklakh Hussain in Civil
Appeal No.1598/2023, wherein, it was held in
paragraph no.10 that the a suit for injunction
simplicitor by a person, who is the holder of an
agreement for sale of the property, is not
maintainable, in asmuch as he failed to sue for
specific performance. According to the learned
counsel, the suit, as framed originally, is liable
to be rejected as not maintainable, going by the
said judgment of an Honourable Supreme Court. Here
again, the question will depend upon the subsequent
event with respect to the sale of the property in
favour of the plaintiffs, whereunder, their rights
got ripened to that of a full owner by virtue of
purchase of the property. In asmuch as the amendment
is allowed and the challenge against the same is
dismissed, the suit, as it stands now, is not

¶50

O.P.(C).Nos. 2291 of 2023 and 143 of 2024

¶51

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suffering from any infirmity, so as to face
rejection under Order VII, Rule 11. It cannot be
said that the infirmity in respect of the suit at
the time of its institution cannot be cured
subsequently, if the same is a curable defect/
infirmity especially, when such infirmity will be
reduced to a vanishing point based on a subsequent
event, which stems from a fact which is very much
pleaded in the suit. In the instant case, the
plaintiffs have very well pleaded that they are the
holders of an agreement for sale in respect of the
subject property and injunction sought for in such
capacity. That right of the plaintiffs has ripened
to that of an absolute owner pursuant to sale of
the scheduled property, within seven days from the
date of institution of the suit.

¶53

6.This court also finds that the judgment of the
Honourable Supreme Court is not liable to be applied
in the instant facts, in as much as the present suit

¶54

O.P.(C).Nos. 2291 of 2023 and 143 of 2024

¶55

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is filed as against a stranger – and not against the
owner - seeking injunction. If and only if it is
sought against the owner, the decision in Shakeel
Ahmmad(supra) will apply, wherein, the vice of not
seeking a relief for specific performance and
limiting the relief to one for injunction
simplicitor will come into play. In the instant
case, the relief for injunction as against 3rd
person, who is the owner of the 2nd floor, which is
the one adjoining to the floors over which the
plaintiffs is seeking title and right. For that
reason also, the decision in Shakeel Ahmmad (supra)
cannot apply, so as to entail rejection of the
plaint under Order VII, Rule 11. In the
circumstances, the challenges posed in this Original
Petition fail and the same will stand dismissed.

¶57

6. Learned counsel for the respondents would submit

¶58

that an application was preferred by the plaintiffs
in the suit as I.A.9/2023 seeking direction to the

¶59

¶60

O.P.(C).Nos. 2291 of 2023 and 143 of 2024

¶61

defendant in the suit to restore the basic amenities
which is still pending. This court notice that the
said application was filed as early as on 31/3/2023.
In the circumstances, there will be a direction to
2nd Additional Munsiff Court, Ernakulam, to hear and
dispose of I.A.No.9/2023 expeditiously, at any rate
within a period of one month from the date of
receipt of a copy of this judgment.

¶62

This Original Petition is disposed of, as above.

¶63

 Sd/-

¶64

C.JAYACHANDRAN, JUDGE

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SSG

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O.P.(C).Nos. 2291 of 2023 and 143 of 2024

¶67

¶68

APPENDIX OF OP(C) 143/2024

¶69

PETITIONER’S EXHIBITS
Exhibit P1TRUE COPY OF THE PLAINT IN OS NO.
300/2023 OF THE HON'BLE IIND ADDITIONAL
MUNSIFF'SCOURT,ERNAKULAMDATED
17.03.2023
Exhibit P2TRUE COPY OF IA NO.2/2023 IN OS NO.
300/2023 DATED 17.03.2023
Exhibit P3TRUE COPY OF THE COUNTER AFFIDAVIT FILED
IN IA NO.2/2023 DATED 20.3.2023
Exhibit P4TRUE COPY OF THE ORDER IN IA NO.2/2023 IN
OS NO.300/2023 OF THE HON'BLE IIND
ADDITIONAL MUNSIFF'S COURT, ERNAKULAM
DATED 28.03.2023
Exhibit P5TRUE COPY OF THE AGREEMENT FOR SALE DATED
4.11.2022
Exhibit P6TRUE COPY OF THE LETTER DATED 24.1.2023
Exhibit P7TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL
NO.1598/2023 DATED 01.11.2023
Exhibit P8TRUE COPY OF IA NO.20/2023 IN OS NO.
300/2023 DATED 7.12.2023
Exhibit P9TRUE COPY OF THE OBJECTIONS FILED TO IA
NO.20/2023 DATED 15.12.2023
Exhibit P10TRUE COPY OF THE ORDER IN IA NO.20/203 OF
THE HON'BLE IIND ADDITIONAL MUNSIFF'S
COURT, ERNAKULAM DATED 12.01.2024

¶70

O.P.(C).Nos. 2291 of 2023 and 143 of 2024

¶71

¶72

APPENDIX OF OP(C) 2291/2023

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PETITIONER’S EXHIBITS
Exhibit P1TRUE COPY OF THE PLAINT IN OS NO.
300/2023 OF THE HON'BLE IIND ADDITIONAL
MUNSIFF'SCOURT,ERNAKULAMDATED
17.03.2023
Exhibit P2TRUE COPY OF IA NO. 2/2023 IN OS NO.
300/2023 DATED 17.03.2023
Exhibit P3TRUE COPY OF THE COUNTER AFFIDAVIT FILED
IN IA NO.2/2023 IN OS NO.300/2023, DATED
20.3.2023
Exhibit P4TRUE COPY OF THE ORDER IN IA NO.2/2023 IN
OS NO.300/2023 OF THE HON'BLE IIND
ADDITIONAL MUNSIFF'S COURT, ERNAKULAM
DATED 28.03.2023
Exhibit P5TRUE COPY OF THE AGREEMENT FOR SALE DATED
4.11.2022
Exhibit P6TRUE COPY OF THE IA NO. 12/2023 IN OS
NO.300/2023 FILED BEFORE THE HON'BLE IIND
ADDITIONAL MUNSIFF'S COURT, ERNAKULAM
DATED 10.04.2023
Exhibit P7TRUE COPY OF THE OBJECTIONS FILED TO THE
IA NO.12/2023 DATED 5.10.2023
Exhibit P8TRUE COPY OF THE ORDER IN IA NO.12/2023
IN OS NO.300/2023 OF THE HON'BLE IIND
ADDITIONAL MUNSIFF'S COURT, ERNAKULAM
DATED 12.10.2023

Dalbi Emmanuel v. Bastin Cherian

Case brief

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What did the court decide?

Dalbi Emmanuel v. Bastin Cherian

Case brief

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What did the court decide?

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