Kerala High Court
Remya Raj vs Haleema Beevi on 30 September, 2021
OP(C).346/21 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943
OP(C) NO. 346 OF 2021
AGAINST THE ORDER/JUDGMENT IN OS 415/2012 OF PRINCIPAL
MUNSIFF COURT ,TRIVANDRUM, THIRUVANANTHAPURAM
PETITIONER/S:
REMYA RAJ
AGED 39 YEARS
D/O.RAJAMANI, SWAMI AYYAPPAN, V.P.XII-648, MOONGODE
P.O., THIRUVANANTHAPURAM.
BY ADVS.
M.R.ANANDAKUTTAN
SMT.M.A.ZOHRA
SRI.MAHESH ANANDAKUTTAN
SMT.SHREEJI R. NAIR
RESPONDENT/S:
1 HALEEMA BEEVI
D/O.RAHIMA BEEVI, T.C.19/2001, ABHISHEKA,
MUDAVANMUGHAL, THIRUMALA P.O., THIRUVANANTHAPURAM,
NOW RESIDING AT NOORMAHAL, PARUTHITHOPPU, IT ROAD,
NEAR SPINNING MILL, BALARAMAPURAM,
THIRUVANANTHAPURAM-695501.
2 HASSANAR,
S/O.PEERUMOHAMMED, T.C.19/2001, ABISHEK,
MUDAVANMUGHAL, THIRUMALA P.O., THIRUVANANTHAPURAM,
NOW RESIDING AT NOORMAHAL, PARUTHITHOPPU, IT ROAD,
NEAR SPINNING MILL, BALARAMAPURAM,
THIRUVANANTHAPURAM-695501.
3 THE MANAGING DIRECTOR,
KTDFC, THIRUVANANTHAPURAM-695001.
OP(C).346/21 2
BY ADVS.
SRI.A.B.MOHANAKUMAR
SHRI.T.P.SAJAN, SC, KTDFC
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C).346/21 3
V.G.ARUN, J.
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O.P(C).No. 346 of 2021
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Dated this the 30th day of September, 2021
JUDGMENT
The petitioner is the additional 2nd plaintiff in O.S.No.415 of
2012 on the files of the Principal Munsiff's Court,
Thiruvananthpuaram. The suit was originally filed by the
predecessor-in-interest of the petitioner with the following
averments;
The plaintiff owns 50 cents of land with a residential building
and other structures. Defendants 1 and 2 induced the plaintiff into
executing a sale deed with respect to the property showing the
sale consideration to be Rs.62,50,000/-. Only Rs.49,50,000/- was
paid by defendants 1 and 2 towards the sale consideration and the
plaintiff retained possession of the property, on the specific
understanding that possession will be handed over only after
payment of the entire sale consideration. Out of the partial sale
consideration paid by defendants 1 and 2, they borrowed a major
portion on the strength of cheques and promissory notes. The
cheques were dishonoured on presentation and a criminal
complaint was lodged by the plaintiff. The plaintiff also came to
understand that defendants had raised a huge loan by mortgaging
his property with the KTDFC, with the active connivance of the 3 rd
defendant. While so, defendants 1 and 2 attempted to forcefully
evict the plaintiff from the property and hence the suit was filed
seeking a decree of permanent prohibitory injunction restraining
the defendants from trespassing into the plaint schedule property,
obstructing his peaceful possession, residence and enjoyment over
plaint schedule property and from committing any waste therein till
the defendants pay Rs.35 lakhs to the plaintiff. In the suit a
temporary injunction was granted and the plaintiff continued to be
in possession.
2. Pending the suit, the original plaintiff died on 24.7.2020
and the petitioner got impleaded as additional 2nd plaintiff on the
strength of a registered will executed by the original plaintiff
bequesting all his properties to the petitioner. After impleadment,
the petitioner filed I.A.No.2 of 2020, seeking to amend the plaint on
the premise that the original plaintiff had filed the suit hastily,
without giving proper instructions to his lawyer and hence, there
occurred serious inadequacies in the pleadings and the prayer. By
the amendment, the petitioner proposed to make additional
pleadings with respect to the transaction between the original
plaintiff and defendants 1 and 2 and to substitute the main relief as
under;
"A) to pass a decree adjudging the sale deed
No.2405/2005 of Malaynkeezhu Sub-Registry with respect to
the plaint schedule property as void and to declare the
original plaintiff's title and possession over the plaint
schedule property and to pass a decree of consequential
prohibitory injunction restraining the defendants from
trespassing into the plaint schedule property and obstructing
the peaceful possession, residence and enjoyment of the
original plaintiff over the plaint schedule building tna dnot to
commit waste therein so as to change the present lie and
nature of the property in any manner. If in case the court
finds that by virtue of the said sale deed the defendants are
entitled to claim any right then the defendants 1 and 2 be
directed to pay at least the sale consideration as shown in the
document as a pre-condition to validate the said document."
3. Objection to the amendment application was filed by
respondents 1 and 2 jointly and by the 3 rd respondent, separately.
The main objection was that the relief sought to be incorporated is
hopelessly barred by limitation and that if the amendment is
allowed the suit valuation will be beyond the pecuniary jurisdiction
of the Munsiff's Court.
4. By Exhibit P4 order, the learned Munsiff dismissed the
application for amendment finding that the relief sought to be
incorporated is barred by limitation. Hence, this original petition.
5. Heard Smt.M.A.Zohra, for the petitioner,
Sri.A.B.Mohankumar, for respondents 1 and 2 and Sri.T.P.Sajan for
the 3rd respondent.
6. Learned counsel for the petitioner contended that, since
the petitioner was impleaded as additional plaintiff at a later stage,
she had every right to seek amendment of the plaint, so as to cure
the infirmities in the plaint. It is pointed out that the original
plaintiff himself had moved an application for amendment, but he
expired before the application was taken up for consideration. After
impleadment, petitioner had withdrawn the amendment application
filed by the original plaintiff with the permission of the court and
had filed a fresh application. As such, the petitioner cannot be
attributed with delay in filing the application. Further, the
amendment having been filed prior to the commencement of trial,
the interdiction in the proviso to Order VI Rule 17 is not attracted. It
is argued that limitation being a mixed question of law and fact, the
trial court committed an illegality in rejecting the amendment on
the ground that the relief sought is barred by limitation. Finally it is
submitted that even if the relief is barred by limitation, the court
below should have allowed the prayer for amending the pleadings.
7. The learned counsel for respondents 1 and 2 contended
that the original plaintiff having made specific averments in the
plaint regarding the transaction, the petitioner cannot be permitted
to alter those pleadings. According to the learned counsel, the very
nature of the suit will be changed if the amendments are allowed.
In any event, the relief sought to be incorporated is barred by
limitation.
8. The learned counsel for the 3rd respondent contended that
the amendment application is filed by the petitioner in collusion
with respondents 1 and 2, with the intention of delaying repayment
of the huge amount of loan availed by respondents 1 and 2 on the
strength of the sale deed executed in their favour by the original
plaintiff.
9. The relief sought in the plaint, as originally filed, is for a
permanent prohibitory injunction restraining defendants 1 and 2
from trespassing into the plaint schedule property and committing
deleterious acts therein, till they pay an amount of Rs.35 lakhs to
the plaintiff. By the proposed amendment, the petitioner seeks to
substitute the relief to a decree, declaring the sale deed executed
by the original plaintiff as void and for consequential prohibitory
injunction and alternatively, to direct defendants 1 and 2 to pay at
least the sale consideration as shown in the document as a pre-
condition for validating the said document, in the event of the
defendants being found entitled for any right by virtue of the sale
deed. The sale deed was executed in 2005 and the original suit was
filed only in 2012. The specific pleading is that, out of the sale
consideration of Rs.62,50,000/-, an amount of Rs.49,50,000/- was
paid by way of demand draft. Of course, the plaintiff has a
contention that from the partial consideration paid, a major chunk
was borrowed by defendants 1 and 2 and never repaid. The original
plaintiff, who had executed the sale deed in favour of the 1 st
defendant, did not seek a declaration that the document is void.
The settled position is that if an independent suit filed on the date
on which the amendment is filed, would be barred by limitation,
then the amendment cannot be entertained. In Revajeetu
Builders & Developers v. Narayanaswamy & Sons [(2009) 10
SCC 84], the Honourable Supreme Court opined that the following
basic principles should be borne in mind while considering an
application for amendment;
"Factors to be taken into consideration while dealing
with applications for amendments
63. On critically analysing both the English and
Indian cases, some basic principles emerge which ought to
be taken into consideration while allowing or rejecting the
application for amendment:
(1) whether the amendment sought is imperative for
proper and effective adjudication of the case;
(2) whether the application for amendment is bona
fide or mala fide;
(3) the amendment should not cause such prejudice
to the other side which cannot be compensated
adequately in terms of money;
(4) refusing amendment would in fact lead to
injustice or lead to multiple litigation;
(5) whether the proposed amendment
constitutionally or fundamentally changes the nature and
character of the case; and
(6) as a general rule, the court should decline
amendments if a fresh suit on the amended claims would
be barred by limitation on the date of application."
I am unable to accept the contention of the learned counsel for the
petitioner that limitation being a mixed question of law and fact,
the amendment application ought to be allowed and the parties
allowed to let in evidence on the question of limitation. The relief of
declaration would have been barred even if made in the plaint itself
and therefore, cannot be permitted to be brought in by way of
amendment. Being so, the additional plaintiff, who is not a party to
the document, cannot be permitted to challenge the document by
incorporating new pleadings and relief.
10. A perusal of the amendment application shows that, other
than the challenge against the sale deed of 2005, there are
pleadings pertaining to the relationship between the parties. I am
unable to uphold the finding of the court below that whatever is
sought by way of amendment is inextricably connected with the
relief sought to be incorporated. Except the amendment sought to
be incorporated to the cause title and the incorporation of
additional sentence in paragraph 22, introduction of paragraph 23
and substitution of the relief, other pleadings sought to be
incorporated have nothing to do with the prayer for setting aside
the document. In my opinion, pleadings, other than those
pertaining to execution of the sale deed, being clarificatory in
nature, can be allowed.
In the result, the original petition is allowed in part. The
impugned order, to the extent it rejects the substitution of the
relief from permanent prohibitory injunction to a declaration that
the sale deed is void and the addition of certain words and
sentences to the cause title, paragraphs 22 and 23 of the plaint, is
affirmed. The order, insofar as it rejects the prayer for amending
the plaint with respect to the pleadings other than those mentioned
above, is set aside. Being a suit of the year 2012, the court below
shall take earnest efforts to dispose of the suit expeditiously.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 346/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN
O.S.NO.415/2012 ON THE FILE OF THE
MUNSIFF'S COURT, THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF I.A.NO.2/2020 02.12.2020
SEEKING TO AMEND THE PLAINT INVOLVING THE
PROVISIONS OF ORDER 6 RULE 17 OF C.P.C.
EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY
RESPONDENTS 1 TO 3 TO I.A.NO.2/2020.
EXHIBIT P4 TRUE COPY OF THE ORDER OF THE PRINCIPAL
MUNSIFF'S COURT, DATED 18.01.2021 IN
I.A.NO.2/2020 IN O.S.NO.415/2012.
