Defendants in a partition suit sought to amend their written statement to dispute a Will after trial commenced, having earlier admitted it in pleadings. The High Court found the amendment inconsistent with existing admissions and barred by Order VI Rule 17, dismissing the petition and confirming the refusal.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 14TH DAY OF MARCH 2024 / 24TH PHALGUNA, 1945
OP(C) NO. 321 OF 2024
ORDER DATED 03.02.2024 IN IA 11 OF 2024 IN OS NO.128 OF 2019 OF
ASSISTANT SESSIONS COURT/III ADDITIONAL SUB COURT, ERNAKULAM
PETITIONERS / DEFENDANTS:
1MIRIAM ELIAS
AGED 72 YEARS
W/O. LATE DR. BASIL ELIAS, 36/106, KOTTE CANAL ROAD,
ERNAKULAM, PIN – 682 018
2SMITHA ELIAS
AGED 48 YEARS
D/O. LATE DR. BASIL ELIAS, 36/106, KOTTE CANAL ROAD,
ERNAKULAM REPRESENTED BY THE POWER ATTORNEY HOLDER HER
BROTHER DAN ELIAS, 36/106, KOTTE CANAL ROAD, ERNAKULAM,
PIN – 682 018
3DAN ELIAS
AGED 44 YEARS
S/O. LATE. DR. BASIL ELIAS, 36/106, KOTTE CANAL ROAD,
ERNAKULAM, PIN – 682 018
BY ADV BIJU ABRAHAM
RESPONDENT/PLAINTIFF:
DR. SUSY ELIAS SAMSON
D/O. ELIYAVOO ELIAS, XL/5386, SKIN CARE CENTRE, ELIAS
CHAMBERS, MARKET ROAD, KOCHI, PIN – 682 016
BY ADVS.
G.RAJAGOPAL
S.LEELALAKSHMI(K/148/1994)
JAYADEEP SAJAN(K/1916/2019)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C).No. 321 of 2024
2
JUDGMENT
Dated, this the 14th day of March 2024
This Original Petition is preferred by the
defendants in the suit O.S.128/2019 pending before
the 3rd Additional Sub Court, Ernakulam. The
petitioners are aggrieved by Ext.P9 order, which
refused an amendment sought for to the written
statement vide Ext.P5 application.
2.Heard the learned counsel for the petitioners
and the respondent. Learned counsel for the
petitioners submit that by virtue of the amendment
vide Ext.P5, all what the petitioners/defendants
wanted was to elaborate their contention - which is
already there in the written statement – pertaining
to the Will claimed by plaintiff. Learned counsel
would invite the attention of this court to
paragraph no. 4 of Ext.P1 plaint, wherein, a claim
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O.P.(C).No. 321 of 2024
based on the disputed Will is seen espoused by the
plaintiff. As against the said claim, in Ext.P2
written statement, the following contention is seen
taken:
“4. The matters pleaded by the plaintiff in
paragraph 4 of the plaint is to be proved by
her, as understood by me the will is not
probated and the statement in paragraph 4 of
the plaint is at odds with the statement given
in the pending suit before this Hon'ble court
as O.S. No. 986/2012.”
3.Thus, according to the learned counsel, the Will
was disputed in the written statement. The original
of the Will was not produced along with the suit.
The case was initially listed for trial on
6/12/2022. The Will was produced only during
December, 2023. Upon going through the original of
the disputed Will only, the defendant's came to know
that the said will was executed by the testatrix,
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O.P.(C).No. 321 of 2024
while she was admitted in hospital. In asmuch as
paragraph no.4 does not contain a specific denial of
the will, the amendment is sought for challenging
the disposing capacity of the testatrix, and also
for the denial of the Will claimed by the plaintiff.
Learned counsel would submit that the amendment
sought for vide Ext.P5 ought to have been allowed
and Ext.P9 order is liable to be interfered with.
4.Per contra, learned counsel for the
respondent/plaintiffwouldsubmitthatno
interference,whatsoever,iswarranted to
Ext.P9 order, which is a well considered one.
Learned counsel would submit that in respect of a
specific plea raised by the plaintiff on the
strength of a Will, all what is seen stated in the
written statement is to the effect that the
plaintiff should prove the contention based on the
Will, with a further assertion that the Will is not
probated. The contention in paragraph no.4 of the
O.P.(C).No. 321 of 2024
5
written statement to the effect that the claim based
on Will is at odds with the statement given in the
pending suit O.S.No.986/2012 is infact contrary to
the very pleadings of the petitioners/ defendants in
their plaint in that suit. Learned counsel would
hand over a copy of the plaint in O.S.No.986/2012,
wherein it is seen pleaded towards the end of the
paragraph 3 as follows:
" Smt.Sara Alias died on 18/3/2005 and as per
her will the 1/3rd right, which she was
enjoying till then was vested with second
defendant. Thereby the plaintiff and the second
defendant are become the joint owners of A
shedule property".
Learned counsel for the respondent then invited the
attention of this court to paragraph no.17 of the
written statement, which is also extracted here
below:
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O.P.(C).No. 321 of 2024
“ 17. Except the partition, no other relief was sought for by the plaintiff is liable to be granted on the facts and circumstances of the case. Therefore, the suit is to be dismissed on all other grounds and reliefs except on partition.”
5.According to the learned counsel, the impression
which one gathers by a reading of the written
statement as a whole, coupled with the averment
contained in the plaint in O.S.No.986/2012, is that
there is no serious dispute with respect to the Will
and that all claims in the plaint, except insofar as
it pertains to partition, has to rejected. Now, by
the proposed amendment vide Ext.P5, the defendants
want to dispute the disposing capacity of the
executant/testatrix and wanted to deny the Will as
such. This is contrary to the existing pleadings and
has the effect of taking away an admission made in
the written statement, is the contention of the
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O.P.(C).No. 321 of 2024
learned counsel for the respondent. Learned counsel
would also submit that a copy of the Will was
produced along with the suit, and that a certified
copy was produced thereafter. What was produced
during December 2023 is the original. The contention
of the petitioners/defendants that they came to know
about the fact that testatrix was hospitalized, only
when they saw the original is nothing, but a
convenient stand taken to explain the delay. The
present contention of the petitioners/defendants
that the copy produced was not readable is not seen
reflected in any of the records produced before the
court and the same is being propounded for the first
time now. Counsel for the respondent finally relied
upon the proviso to Order VI, Rule 17 to point out
that, no reason as to why the amendment could not
have been sought for before the commencement of the
trial has been stated in Ext.P5.
6.Having heard the learned counsel appearing for
both sides,this court cannot endorse the submissions
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O.P.(C).No. 321 of 2024
made by the learned counsel for the petitioners in
this Original Petition. As rightly pointed out by
the learned counsel for the respondent, the solitary
contention which is seen raised in the written
statement vide paragraph no.4 is that plaintiff
should prove the averment regarding the Will and
that the Will is not probated. There is no
challenge, as such, to the Will. The statement in
paragraph no. 4 of the written statement, that the
claim based on Will is at odds with the statement in
O.S.No.986/2012 is again, something which goes
against the petitioners only. Having extracted the
pleadings in the plaint preferred by the present
petitioners in O.S.986/ 2012, it can only be found
that the Will executed by the testatrix is seen
admitted therein. This factual situation, supported
by the contentions in paragraph no.7 of the written
statement, would only go to show that the Will in
question was not disputed seriously by the
defendants/petitioners. As it is well settled, a
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O.P.(C).No. 321 of 2024
denial in respect of a pleading in the plaint has to
be specific. Now, the amendment seeks to question
the disposing capacity of the testatrix. The
contention that the petitioners/defendants came to
know about the fact that the testatrix was at
hospital, when she executed the will, only when
petitioners saw the original Will produced, is
something hard to believe. As rightly pointed out,
copy of the Will was produced along with the plaint.
Besides, a certified copy was also produced pending
the proceedings. If that be so, the contents of the
Will could have been read and perused by the
defendants earlier. It is also not believable that
the contention vide paragraph no.4 of the written
statement were canvassed without reading and
perusing the Will in question.
7.This court notice that the present amendment
application has been preferred after commencement of
the trial. The suit was scheduled for trial on
O.P.(C).No. 321 of 2024
10
05.01.2024, which was then adjourned to 10.01.2024
and from there to 17.01.2024. The proof affidavit on
behalf of the plaintiff was filed on 03.01.2024
namely two days before the first date on which the
suit was scheduled for trial. It is between
10.01.2024 and 17.01.2024 that the defendant
preferred application for amendment. In M.Ravammav.
Anjanamma dead by legal representative and Ors .
[(2019) 4 SCC 332], the Honourable Supreme court
held that an amendment may be rejected, if it seeks
to introduce a totally different new and
inconsistent case or when the amendment changes the
fundamental character of the suit. On the proviso to
Order VI, Rule 17 the Honourable Supreme Court held
that an application for amendment after commencement
of the trial shall not be allowed, unless the court
comes to the conclusion that inspite of due
diligence, the party could not have raised the
matter before the commencement of the trial. The
dictum was followed recently by Honourable Supreme
O.P.(C).No. 321 of 2024
11
Court in BasavarajV. Indira[(2024) KLT Online
6101], wherein the dictum laid down in R e vamma
(supra) has been quoted with approval. On the
question as to point of time, at which a trial
commences, learned counsel for the respondent relied
upon a judgment of this Court in Sasikala.T.V and
anotherv. C.P.Jose[2021 (1) KLT 767] which held
that the suit commences on the date on which an
affidavit in lieu of chief examination of a party of
his witness is filed for the purpose of recording
evidence. The above referred finding is arrived in
paragraph no.14 of the judgment, after referring to
a catena decisions of the various High Courts, as
also, the Supreme Court. The jurisdictional fact to
invoke the proviso to Order VI, Rule 17 is not
satisfied in the instant facts.
O.P.(C).No. 321 of 2024
12
In the circumstances, this Original Petition will
stand dismissed, confirming Ext.P9 order of the
learned Sub Judge.
Sd/-
C.JAYACHANDRAN, JUDGE
SSG
O.P.(C).No. 321 of 2024
13
APPENDIX OF OP(C) 321/2024
PETITIONERS’ EXHIBITS
Exhibit P1A TRUE COPY OF THE PLAINT IN O.S. NO.
128/2019 DATED 11-06-2019 ON THE FILES OF
THE SUB-COURT, ERNAKULAM
Exhibit P2A TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE PETITIONERS AS DEFENDANT IN
O.S. NO. 128/2019 DATED 15-01-2020 ON THE
FILES OF THE SUB-COURT, ERNAKULAM
Exhibit P3. A TRUE COPY OF THE LIST OF DOCUMENTS
FILED BY THE RESPONDENT HEREIN AS
PLAINTIFF IN O.S. NO. 128/2019 DATED 19-
12-2023 ON THE FILES OF THE SUB-COURT,
ERNAKULAM
Exhibit P4A TRUE COPY OF THE PETITION TO RECEIVE
THE DOCUMENTS FILED BY THE PLAINTIFF
DATED 03-01-2024
Exhibit P5A TRUE COPY OF THE APPLICATION FOR
AMENDMENT OF THE WRITTEN STATEMENT FILED
BYTHEPETITIONERS/DEFENDANTSAS
I.A.NO.11/2024 IN O.S. NO. 128/2019 DATED
09-01-2024 ON THE FILES OF THE SUB-COURT,
ERNAKULAM
Exhibit P6A TRUE COPY OF THE APPLICATION FOR
REMOVING THE SUIT FROM THE LIST FILED BY
THEPETITIONERS/DEFENDANTSAS
I.A.NO.12/2024 IN O.S. NO. 128/2019 DATED
09-01-2024 ON THE FILES OF THE SUB-COURT,
ERNAKULAM
Exhibit P7A TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE RESPONDENT/PLAINTIFF IN
I.A.NO.11/2024 IN O.S. NO. 128/2019 DATED
16-01-2024 ON THE FILES OF THE SUB-COURT,
ERNAKULAM
Exhibit P8A TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE RESPONDENT/PLAINTIFF IN
I.A.NO.12/2024 IN O.S. NO. 128/2019 DATED
16-01-2024 ON THE FILES OF THE SUB-COURT,
ERNAKULAM
O.P.(C).No. 321 of 2024
14
Exhibit P9 |
A TRUE |
COPY OF THE ORDER IN |
|---|---|---|
I.A.NO.11/203-02-2024ERNAKULAM |
024 IN O.S. NO. 128/2019 DATEDON THE FILES OF THE SUB-COURT, |
|
Exhibit P10 |
A TRUE |
COPY OF THE ORDER IN |
I.A.NO.12/203-02-2024 |
024 IN O.S. NO. 128/2019 DATEDON THE FILES OF THE SUB-COURT, |
|
ERNAKULAM |
2 issues framed by the court
Should the trial court's refusal to allow amendment of the written statement to deny the Will and challenge the testatrix's disposing capacity be upheld?
Was the amendment application filed after commencement of trial excusable despite due diligence under the proviso to Order VI, Rule 17 CPC?
Colour shows how this judgement treated each authority
M.Ravamma v. Anjanamma dead by legal representative and Ors.Relied on
(2019) 4 SCC 332 · Who else cites this
Basavaraj v. IndiraFollowed
(2024) KLT Online 6101
Sasikala.T.V and another v. C.P.JoseApplied
2021 (1) KLT 767
1 provisions across 1 enactments
Miriam Elias
Smitha Elias
Dan Elias
Dr. Susy Elias Samson
C. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court