A partition suit where defendants propounded a Will; plaintiffs' belated amendment pleading community status was allowed by trial court after defendants' evidence ended. The High Court upheld the amendment as necessary for adjudication, enhanced the compensatory cost to Rs.15,000 payable to defendants, and confirmed the order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 21ST DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945
OP(C) NO. 3396 OF 2017
AGAINST THE ORDER/JUDGMENT OS 328/2013 OF MUNSIFF COURT, CHITTUR
PETITIONERS/RESPONDENTS 6,7,8,9 IN I.A./DEFENDANTS 6,7,8,9 IN O.S:
1 MICHAEL SWAMY AGED 61 YEARS S/O. MARIYADAS, RESIDING AT SUDAMANIYAM HOUSE,KULLARAYAN PALAYAM, PAZHANIYAR PALAYAM, KOZHINJAMPARA,CHITTUR TALUK, PIN - 678 555.
2 JOHN PETER AGED 54 YEARS S/O. MARIYADAS, RESIDING AT SUDAMANIYAM HOUSE,KULLARAYAN PALAYAM, PAZHANIYAR PALAYAM, KOZHINJAMPARA,CHITTUR TALUK, PIN - 678 555.
3 SUSEELA MARY AGED 59 YEARS W/O. MANI ALIAS ARULAPPAN, RESIDING AT SUDAMANIYAM HOUSE,KULLARAYAN PALAYAM, PAZHANIYAR PALAYAM, KOZHINJAMPARA,CHITTUR TALUK, PIN - 678 555.
4 SANTHI AGED 56 YEARS W/O. SOOSAIMAIKKAM, RESIDING AT DHARAPURATHAR HOUSE,KULLARAYAN PALAYAM, PAZHANIYAR PALAYAM, KOZHINJAMPARA,CHITTUR TALUK, PIN - 678 555. BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 5/PLAINTIFFS & RESPONDENTS 1 TO 5:
1 ANTHONY MARIYA LOUIES AGED 76 YEARS S/O. SOWRIYAR MANIYAKKARAN, RESIDING AT KULLARAYARPALAYAM, PAZHANIYAR PALAYAM, KOZHINJAMPARA,CHITTUR TALUK, PIN - 678 555.
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2 RENJITHAMARI AGED 73 YEARS D/O. SOWRIYAR MANIYAKKARAN, RESIDING AT KULLARAYARPALAYAM, PAZHANIYAR PALAYAM, KOZHINJAMPARA,CHITTUR TALUK, PIN - 678 555.
3 JOHNAROSI AGED 50 YEARS D/O. ANTONY ALPHONSE, RESIDING AT MENONPARA, PARISAKKAL P.O, KUDAMALACHALLA, VADAKARAPATHY, CHITTUR TALUK, PIN - 678 556. 4 JOHN BENEDICT AGED 48 YEARS S/O. ANTONY ALPHONSE, RESIDING AT PAZHANIYAR PALAYAM,KOZHINJAMPARA, CHITTUR TALUK, PIN - 678 555.
AGED 56 YEARS S/O. LATE BHAGYANATHAN, RESIDING AT NEAR PUZHAPPALAM,MENONPARA, CHITTUR TALUK, PIN - 678 556. 7 JAYASEELI AGED 63 YEARS D/O. LATE BHAGYANATHAN, RESIDING AT NEAR PUZHAPPALAM,MENONPARA, CHITTUR TALUK, PIN - 678 556.
8 MARI AGED 53 YEARS W/O. SUBHAIYAMUTHU, RESIDING AT SANTHI RICE MILL,ERUTHEMPATHY P.O, CHITTUR TALUK, PIN - 678 555.
OP(C) NO. 3396 OF 2017 -3-
BY ADVS. SRI.C.P.PRADEEP SMT.P.R.REENA
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
This Original Petition is preferred by defendant nos. 6, 7, 8 and 9 in O.S.No.328 of 2013 pending before the Munsiff Court, Chittur. The petitioners are aggrieved by Ext.P6 order, which allowed an amendment sought for vide Ext.P3 application, after the entire evidence of the defendants are over. In this regard, it is to be noted that the defendants were examined first, in
view of the fact that they were propounding a Will, in answer to the claim of the plaintiffs seeking partition.
2. Heard Sri.S.V.Balakrishna Iyer, learned Senior counsel, instructed by Sri.P.B.Krishnan on behalf of the petitioners and Sri.C.P.Pradeep on behalf of the respondents/plaintiffs.
3. Learned Senior Counsel would submit that
Ext.P6 order is in derogation of the mandatory provisions contemplated under the Proviso to
OP(C) NO. 3396 OF 2017 -5-
Order 6, Rule 17. Admittedly, the amendment
application vide Ext.P3 was filed, after the evidence on behalf of the defendants were completed. The jurisdictional fact as to why the plaintiffs could not bring in the amendment before commencement of the trial and also the question as to the same being impossible, despite exercise of due diligence, was not properly considered, is the contention raised. A pleading to the effect that the plaintiffs belong to Vaniya Christian community was raised for the
first time in Ext.P3 amendment application. Even assuming that the plaintiffs belong to that community, it is not automatic that they are governed by the Hindu Mitakshara Law. On such premise, Ext.P6 order was seriously attacked by the learned Senior counsel.
4. In answer to the above, learned counsel
for the respondents would point out that the
OP(C) NO. 3396 OF 2017 -6-
status of the parties, as belonging to the Vaniya-Christian community, which is pleaded in Ext.P3 amendment application, has not been disputed in Ext.P4, or for that matter, Ext.P5 counter affidavit filed by defendant Nos.6, 7 and 9. That being so, the amendment is quite necessary for the adjudication of the issue before the Court. In such circumstances, Ext.P6 order cannot be frowned upon, is the submission made.
5. Having heard the learned counsel appearing on both sides, this Court primarily notice that the amendment is quite belated. As already indicated, the same was preferred after completion of defense evidence. True that, the evidence of the defendants were adduced first in view of the fact that the defendants are proponding a Will in answer to the claim for partition made by the plaintiffs. Ordinarily, the amendment sought for
OP(C) NO. 3396 OF 2017 -7-
is hit by the Proviso to Order 6, Rule 17, since no explanation is forthcoming as to why the said amendment could not be sought for earlier, despite exercising due diligence. However, this Court should also notice that the amendment sought for is necessary for a just and proper adjudication of the issue raised in the suit. The suit is one for partition. The claim was resisted by proponding a Will by the defendants. The Will was sent to forensic examination and the report has been filed. In case the defendants fail to
prove the Will, the suit has to be allowed in terms of the law, which governs the parties. Therefore, the status of the parties and the law governing them are of fundamental impact in so far as the instant suit is concerned. Therefore, this Court endorses the findings of the learned Munsiff that the amendment sought for is very much necessary for a just and proper adjudication
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of the suit. The same is also required to avoid multiplicity of proceedings.
6. In these circumstances, Ext.P6 order is liable to be sustained, but on suitable terms as enjoined by Order 6, Rule 17. As already indicated, the amendment is sought for only after commencement of the trial and even after completion of the defendants’ evidence. The suit is of the year 2013 and the amendment is sought for only in the month of August, 2017. There is considerable delay, which certainly prejudice the interest and rights of the defendants in the suit, who are the petitioners herein. In the circumstances, the cost awarded by the learned Munsiff in Ext.P6 order is enhanced to Rs.15,000/- to be paid by the plaintiffs to defendants 6,7,8 and 9, who are the petitioners herein within a period of three weeks from the date of receipt of a copy of this judgment.
OP(C) NO. 3396 OF 2017 -9-
Subject to the above modification, Ext.P6 order is confirmed. This Original Petition is allowed as indicated above.
Sd/-
C. JAYACHANDRAN JUDGE
vv
OP(C) NO. 3396 OF 2017 -10-
APPENDIX OF OP(C) 3396/2017
PETITIONER EXHIBITS
| EXHIBIT P1 | DATED 10-9-2013, TRUE COPY OF THE |
|---|---|
| PLAINT IN O.S NO.328 OF 2013, MUNSIFF'S COURT, CHITTUR. |
|
| EXHIBIT P2 | DATED 26-2-2014, TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS |
| 5 TO 8 IN O.S NO.328 OF 2013, MUNSIFF'S COURT, CHITTUR. |
|
| EXHIBIT P3 | DATED NIL -8-2017,TRUE COPY OF I.A NO. 1663 OF 2017 IN O.S NO.328 OF 2013, MUNSIFF'S COURT, CHITTUR. |
| EXHIBIT P4 | DATED 9-8-2017, TRUE COPY OF THE OBJECTION TO I.A NO. 1663 OF 2017 IN O.S NO.328 OF 2013, MUNSIFF'S COURT, |
| CHITTUR FILED BY PETITIONERS 1 TO 3 HEREIN. |
|
| EXHIBIT P5 | DATED 21-8-2017, TRUE COPY OF THE OBJECTION TO I.A NO. 1663 OF 2017 IN O.S NO.328 OF 2013, MUNSIFF'S COURT, CHITTUR FILED BY PETITIONERS NO.4 HEREIN. |
| EXHIBIT P6 | DATED 4-9-2017, TRUE COPY OF THE ORDER IN I.A NO. 1663 OF 2017 IN O.S NO.328 |
| OF 2013, MUNSIFF'S COURT, CHITTUR. |
1 issue framed by the court
Whether a belated amendment pleading the parties' Vaniya-Christian community status, sought after completion of defendants' evidence, could be allowed under Order 6 Rule 17 CPC.
1 provisions across 1 enactments
Michael Swamy
John Peter
Suseela Mary
Santhi
Anthony Mariya Louies
Renjithamari
C. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
