Kokkuzhi Asokan vs Girija
2021 Latest Caselaw 4162 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

            THE HONOURABLE MR. JUSTICE SATHISH NINAN

   THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                        OP(C).No.1866 OF 2020

 AGAINST THE ORDER DATED 30.11.2020 IN I.A.NO.4/2020 IN OS NO.
               78/2016 OF MUNSIFF COURT, KALPETTA

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PETITIONERS/PLAINTIFFS:

      1      KOKKUZHI ASOKAN
             AGED 66 YEARS
             S/O. SAMAKAVUNDAN, ARIVARATH HOUSE, KAMBALAKKAD
             P.O, WAYANAD DISTRICT PIN 673 122

      2      SASIKALA,
             D/O. SAMAKAVUNDAN, ARIVARATH HOUSE, KAMBALAKKAD
             P.O, WAYANAD DISTRICT PIN 673 122

             BY ADV. SRI.P.T.MOHANKUMAR

RESPONDENT/DEFENDANT:

             GIRIJA
             D/O. SAMAKAVUNDAN, ARIVARATH HOUSE, KAMBALAKKAD
             P.O, WAYANAD DISTRICT PIN 673 122

             R1 BY ADV. SRI.B.PREMNATH (E)

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                    SATHISH NINAN, J.
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               O. P. (C) No.1866 of 2020
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         Dated this the 4th day of February, 2021

                                 JUDGMENT

The application filed by the petitioners-

plaintiffs seeking amendment of the plaint after the evidence in the suit was recorded, was

dismissed by the trial court. The said order is

under challenge in this original petition by the

plaintiffs.

2. Heard Sri.P.T.Mohan Kumar, learned counsel

for the petitioners-plaintiffs and Sri.B.Premnath,

learned counsel for the respondent-defendant.

3. The suit is one for a mandatory injunction

to vacate the building-residential house, for

recovery of damages for use and occupation and also

for a prohibitory injunction. The amendment sought

for relates to certain entries in the schedule to

the plaint regarding description of the property.

According to the petitioners-plaintiffs, the

mistakes were noted only during the course of trial

which resulted in the delay in filing the O. P. (C) No.1866 of 2020

application. Sri.Premnath, the learned counsel for

the respondent-defendant is justified in his

submissions that the proviso to Order VI Rule 17

CPC places an embargo on granting of amendments

after commencement of trial. Whether the conditions

specified in the proviso to entertain an

application for amendment after the commencement of

trial has been satisfied or not, and whether any

prejudice would be caused to the opposite party

consequent on the amendment are essentially the

matters to be considered.

4. The nature of the suit has been referred to

earlier and it relates to a residential building.

The property with its derivation of title has been

referred to in the body of the plaint. The right of

the defendant to cling on to the property is the

question arising for decision in the suit. The

defendant does not have any property adjoining the

plaint schedule property. The identity of the

property is not in dispute in the suit. The

contention of the petitioners-plaintiffs that the

mistaken descriptions in the property, as given in O. P. (C) No.1866 of 2020

the schedule, was noticed only during the course of

trial cannot be brushed aside. The parties were

well aware of the subject matter over which they

are litigating. In the circumstances, I am of the

opinion that the amendment as sought for would not

in any manner prejudice the defendant and is liable

to be allowed. The inconvenience caused to the

respondent-defendant could be compensated by way of

costs.

5. In the result, the order impugned is set

aside and IA 4/20 in OS 78/2016 of the Munsiff's

Court, Kalpetta will stand allowed on condition

that the petitioners pay an amount of `10,000/- as

costs to the counsel appearing for the respondent-

defendant before this Court within a period of ten

days from today. The amendment shall be carried out

within a further period of five days. On such

amendment being carried out, if the respondent-

defendant seeks for an opportunity to adduce

evidence, including by cross-examining the

plaintiff's witnesses, the same shall be permitted.

In the event of failure on the part of the O. P. (C) No.1866 of 2020

petitioners-plaintiffs to pay the costs as ordered

within the time stipulated, the original petition

will stand dismissed affirming the order impugned.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge OP(C).No.1866 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 19-02-2016 IN OS 78/2016 IN THE FILE OF THE MUNSIFF OF KALPETTA

EXHIBIT P2 TRUE COPY OF THE AMENDMENT APPLICATION FILED AS IA NO 4/2020 IN OS 78/2016, BEFORE THE MUNSIFF OF KALPETTA, ON 06-11-2020

EXHIBIT P3 TRUE COPY OF THE ORDER IN IA NO. 4/2020 IN OS 78/2016 PASSED BY THE MUNSIFF OF KALPETTA, DATED 30-11-2020 (ERRONEOUSLY SHOWN AS THE 3RD DAY OF NOVEMBER)

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