C.V. Asokan vs C.V. Sasankan
2022 Latest Caselaw 9163 Ker

               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

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

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

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

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

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

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

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.