IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 1ST DAY OF AUGUST 2022 / 10TH SRAVANA, 1944
OP(C) NO. 923 OF 2022
AGAINST THE ORDER/JUDGMENT IN OS 92/2014 OF ADDITIONAL MUNSIFF
COURT, KOCHI
PETITIONER/PETITIONER/PLAINTIFF:
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
RESPONDENTS/RESPONDENTS/DEFENDANTSS:
1 C.V. SASANKAN
AGED 73 YEARS
S/O. VELAYUDHAN,
CHAKKANATTUPADIKKAL, C.C. 19/1716,
NEAR COCHIN TRADERS, RAMESWARAM
VILLAGE, KOCHI TALUK, PIN - 682507
2 C.V. BABU
AGED 70 YEARS
S/O. VELAYUDHAN,
CHAKKANATTUPADIKKAL, C.C. 19/1716,
NEAR COCHIN TRADERS, RAMESWARAM
VILLAGE, KOCHI TALUK, PIN - 682507
3 KADAMBARI @ KANAKA
AGED 63 YEARS
W/O. SADANANDAN &
D/O. VELAYUDHAN, VELUTHEDATH HOUSE,
AROOR P.O., PIN - 68853414
4 URMILA
AGED 60 YEARS
W/O. GANESAN & D/O. VELAYUDHAN, ASAKANTHARAVELI,
AROOR P.O., PIN - 688534
OP(C) NO. 923 OF 2022
2
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)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
01.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 923 OF 2022
3
JUDGMENT
Dated this the 1st day of August, 2022 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.
2. 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.
3. The first respondent alone appeared in this matter, though the other respondents are also given notice.
4. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the first respondent.
OP(C) NO. 923 OF 2022 4
5. In this matter, the petitioner herein filed O.P.(C). 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 1st defendant obtained Patta No.L1-1913/2006 dated 27.02.2007 in his name. The said Patta is obtained by the 1st 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 1st defendant, it cannot be considered as a proof of his exclusive possession of the plaint schedule property. The Patta is issued considering OP(C) NO. 923 OF 2022 5 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 1st defendant is only having right in the plaint schedule property equal to that of the plaintiff and other defendants".
6. 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 OP(C) NO. 923 OF 2022 6 warranting amendment is a matter known to the petitioner much before. Therefore, the learned Additional Munsiff dismissed the application.
7. 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.
8. 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 OP(C) NO. 923 OF 2022 7 allowed.
9. 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. OP(C) NO. 923 OF 2022 8 Therefore, I am of the view that the learned Additional Munsiff rightly dismissed the application. I do endorse the said finding.
10. 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.
Observing so, this original petition stands dismissed confirming Ext.P15 order impugned.
Sd/-
A. BADHARUDEEN JUDGE nkr OP(C) NO. 923 OF 2022 9 APPENDIX OF OP(C) 923/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT O.S 92/2014 DATED 1/3/2014 FILED BEFORE THE ADDITIONAL MUNSIFF COURT, KOCHI.
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 24/6/2015 IN EXBT P1 FILED BY THE 1ST DEFENDANT.
Exhibit P3 TRUE COPY OF THE PLAINT O.S 89/2014 DATED 28/2/2014 FILED BY THE 1ST RESPONDENT AGAINST THE PETITIONER AND THE OTHER RESPONDENTS.
Exhibit P4 TRUE COPY OF THE WRITTEN STATEMENT DATED 16/10/2015 IN EXBT P3 FILED BY THE PETITIONER.
Exhibit P5 TRUE COPY OF THE ORDER DATED 24/9/2014 IN C.M.A 7/14 IN I.A 513/2014 IN O.S.
92/2014 OF THE SUBORDINATE JUDGES
COURT, KOCHI
Exhibit6 TRUE COPY OF THE ADVOCATE
COMMISSIONER'S REPORT DATED 4/3/2014 IN I.A 514/14 IN O.S. 92/2014.
Exhibit P7 TRUE COPY OF THE I.A 2155/18 DATED 8/9/2018 IN O.S. 92/2014 FILED BY THE PETITIONER.
Exhibit P8 TRUE COPY OF THE I.A 2156/18 DATED 6/9/2018 IN O.S. 92/2014 FILED BY THE PETITIONER.
Exhibit P9 TRUE COPY OF THE I.A.2279/18 IN O.S.
92/2014 FILED BY THE PETITIONER.
Exhibit P10 TRUE COPY OF THE ORDER DATED 5/10/2018 IN I.A 2155/18 IN O.S. 92/2014 OF THE MUNSIFF COURT, KOCHI.
Exhibit P11 TRUE COPY OF THE ORDER DATED 5/10/2018 IN I.A 2156/18 IN O.S. 92/2014 OF THE MUNSIFF COURT, KOCHI.
Exhibit P12 TRUE COPY OF THE JUDGMENT DATED 11/1/2022 IN OP (C) 2616/2018.
Exhibit P13 TRUE COPY OF THE I.A 2/2022 IN O.S.
92/2014 FILED BY THE PETITIONER ON OP(C) NO. 923 OF 2022 10 25/2/2022 FOR AMENDING THE PLAINT.
Exhibit P14 THE TRUE COPY OF THE COUNTER IN EXT.P13 DATED 30/3/2022 FILED BY THE RESPONDENT.
Exhibit P15 TRUE COPY OF THE ORDER DATED 6/4/2022 IN I.A 2/2022 IN O.S. 92/2014.