Kerala High Court
Anto vs Sathyanandan on 25 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943
OP(C) NO. 2510 OF 2021
AGAINST THE ORDER/DATED 02.12.2021 IN IA.NO.4/2021 IN
OS 415/2010 OF PRINCIPAL SUB COURT,IRINJALAKUDA
PETITIONER/PLAINTIFF:
ANTO
AGED 67 YEARS
S/O. OLATTUPURATH MICHEL, PALLIPURAM VILLAGE
AND DESOM, KODUNGALLUR TALUK-680 732.
BY ADVS.
K.S.BHARATHAN
ALPHIN ANTONY
AADITHYAN S.MANNALI
VISAKH ANTONY
ABEL ANTONY
CHRISTINE MATHEW
RANCE R.
RESPONDENTS/DEFENDANTS:
1 SATHYANANDAN,
AGED 80 YEARS,
S/O. CHENTHIRITHI RAMAN, PALLIPPURAM VILLAGE
AND DESOM, KODUNGALLUR TALUK, PIN - 689732.
2 SUNIL
AGED 40 YEARS
S/O. CHENTHIRITHI RAMAN, PALLIPPURAM VILLAGE
AND DESOM, KODUNGALLUR TALUK, PIN - 689732.
3 HARIDAS,
AGED 40 YEARS
S/O. CHENTHIRITHI RAMAN, PALLIPPURAM VILLAGE
AND DESOM, KODUNGALLUR TALUK, PIN - 689732.
O.P(C).No.2510 of 2021 2
4 RAJAMANI,
AGED 65 YEARS
W/O. CHENTHIRITHI BAHULEYAN, PALLIPPURAM
VILLAGE DESOM, KODUNGALLUR TALUK, PIN -
689732.
5 BINOY
AGED 39 YEARS
S/O. CHENTHIRITHI BAHULEYAN, PALLIPPURAM
VILLAGE DESOM, KODUNGALLUR TALUK, PIN -
689732.
BY ADVS.
V.M.KRISHNAKUMAR
T.N.MANOJ
P.R.REENA
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
25.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P(C).No.2510 of 2021 3
A. BADHARUDEEN, J.
================================
O.P(C).No.2510 of 2021
================================
Dated this the 25th day of January, 2022
JUDGMENT
In this Original Petition filed under Article 227 of the
Constitution of India, the plaintiff in O.S.No.415/2010 on the
finding of the Principal Sub Judge, Irinjalakuda raised
challenge against order in I.A.No.4/2021 dated 2.12.2021 in
the above Suit whereby, the learned Sub Judge dismissed the
said application seeking amendment.
2. Heard the learned counsel for the petitioner as
well as the learned counsel appearing for the respondents.
3. The learned counsel for the petitioner argued at
length to substantiate that the amendment sought for in
I.A.No.4/2021 is absolutely necessary to decide the dispute in
between the parties and therefore the court below went wrong
in dismissing the petition. The learned counsel reiterated the
averments stated in the affidavit in support of this petition
and canvassed amendment as sought for after setting aside
the order impugned. I have perused the affidavit in support
of the amendment and the amendment sought for. It has to be
noted that the amendment sought for after completion of the
evidence and after adjourning the case for final hearing
repeatedly.
4. Initially, the plaintiff claimed right of easement by
prescription in respect of B schedule pathway alleging that
the B schedule is the property belonging to defendants 4 and
5. Now the plaintiff wants to amend the plaint stating that B
schedule alleging that B schedule is passing through the
property of defendants 1 to 5 in deviation from earlier
pleadings. Secondly, it has been averred that the above
mistakes could not be corrected because his earlier counsel
had given wrong legal advice. It has been stated further that
reference to mediation of this matter was sought after
completion of the evidence and failure to settle the dispute
otherwise.
5. The defendants filed detailed objection
highlighting the history of the case. It has been narrated
therein that after completion of evidence when the case was
posted, the same was adjourned for hearing on multiple
occasions and thereafter it was referred to mediation.
Though the matter kept pending before the mediation centre
for a while, mediation failed. Again also hearing court
adjourned for 2 years and at the fag end, this amendment
application was filed by authorising another counsel on the
ground that the earlier counsel given wrong legal advice. It
has been stated in the objection further that the amendment
sought for, if incorporated, the basic structure of the plaint
would be changed and therefore the defendants would have
to file additional written statement and adduce evidence.
Further it has been stated that the defendants filed argument
note in this case and after perusal of the argument note
submitted, the amendment application has been filed to fill
up the lacuna in the plaintiff's case.
6. I have perused the order passed by the learned
Munsiff. The learned Munsiff upheld the objection raised by the
defendant and disallowed the amendment sought for in an
application filed after completion of trial.
7. While pressing for the amendment, the learned
counsel for the petitioner placed decisions of the Honourable
Supreme Court reported in [2019 (2) KHC SN 13 (Page
No.29(SC)], Varun Pahwa v. Renu Chaudhary, to contend
that inadvertent mistake on the part of the counsel, who
drafted the plaint, cannot be refused to be corrected when the
mistake is apparent from the reading of the plaint. On perusal of
the decision, amendment was sought for to correct an
inadvertent mistake in the name of the plaintiff. [To be precise,
the original name of the plaintiff as "Siddharth Garments
Pvt. Ltd. through its Director Varun Pahwa" was allowed to
be incorporated instead of "Varun Pahwa through Director
of Siddharth Garments Pvt. Ltd.".] Thus it is clear
that an inadvertent mistake in describing the name in a
proper form was corrected on the principle that the
inadvertent mistake of the counsel, who drafted the plaint,
cannot be refused to be corrected when the mistake is
apparent from the reading of the plaint.
8. Another decision reported in [2020 (5) KLT 796],
Nalini v. Chandrika Kumari Amma, rendered by a Single
Judge of this Court, has been placed to contend that the
amendment proposed as of now by the plaintiff is liable to be
allowed. In the above decision, in para.15 and 16, the
learned Single Judge held as under:
"15. Amendment of plaint is sought by the plaintiffs
seeking new relief of declaration that the settlement deeds executed
in favour of the defendants are null and void. In that context, the
question whether the defendants had disclosed the existence of the
settlement deeds in the written statement filed by them would
assume significance. If the defendants had disclosed that fact in the
written statement, the plaintiffs could not contend that they became
aware of the settlement deeds or their execution only after closing
the evidence in the suit.
16. Even if the trial court finds that, inspite of exercising due
diligence, the plaintiff could not have filed an application for
amendment of the plaint before commencement of the trial of the
suit, the court has to consider certain other aspects also. They are :
(1) Whether the amendment sought is imperative for proper and
effective adjudication of the case? The real controversy test is the
basic or cardinal test in deciding whether the amendment is to be
allowed or refused. It is the primary duty of the Court to decide
whether the amendment is necessary to decide the real dispute
between the parties. (2) Whether the application for amendment is
bona fide or mala fide? (3) Whether the amendment would cause
such prejudice to the opposite party which cannot be compensated
adequately by payment of costs? (4) Whether rejecting the
application for amendment would lead to injustice or lead to
multiple litigation? (5) Whether the proposed amendment would
fundamentally change the nature and character of the case? (6)
Whether the claims raised by way of amendment would be barred
by limitation as on the date of the application? There are some of
the important factors which shall be considered by the court in
delaing with an application for amendment of pleadings."
9. Another decision reported in [2020 (4) KHC 434],
Gopalakrishnan K.T v. Kodasseri Karyat Peethambaran &
Ors. also has been placed to contend that a second
application for amendment, even after allowing the first
application, also would lie.
10. Per contra, the learned counsel for the respondents
argued that in order to allow an amendment after
commencement of trial, strict complaince of the proviso to
Order 6 Rule 17 is mandatory. In support of this contention,
the learned counsel placed decisions reported in [2021 (1)
KLT 767], Sasikala v. Joseph and also [2009(1) KLT SN 14
(C.No.13) SC], Vidyabai v. Padmalatha. In Vidyabai's case
(supra), the Honourable Supreme Court, after referring the
decision reported in [2006 (3) KLT 192(SC) : (2006) 4 SCC
385], Rajesh Kumar Aggarwal v. K.K.Modi & Ors., held that
the court should allow amendments that would be necessary
to determine the real question of the controversy between the
parties but the same indisputably would be subject to the
condition that no prejudice is caused to the other side. It is
the primary duty of the court to decide as to whether such an
amendment is necessary to decide the real dispute between
the parties. Only if such a condition is fulfilled, the
amendment is to be allowed. However, proviso appended to
O.VI, R.17 of the Code restricts the power of the court.
11. When the learned counsel for the petitioner was
asked to justify compliance of Order 6 Rule 17, the learned
counsel justified compliance on the submission that wrong
legal advice given by the earlier counsel was the reason for
non incorporation of amendment sought to be incorporated
and therefore, Order 6 Rule 17 has been complied.
12. To be on the merits of this case, originally, the
Suit was filed for declaration of easement by prescription
over B schedule property and for permanent prohibitory
injunction restraining the defendants from obstructing B
schedule. Mandatory injunction also was sought for to
remove the ginger plantation carried out in the plaint C
schedule property, forming part of B schedule. After trial and
after getting adjournment of the case repeatedly and even
failed to settle the matter in mediation, 9 amendments
proposed to be incorporated in the plaint. Going by the
amendment, it could be gathered that even the length of the B
schedule pathway from 50 metres is sought to be amended as
60 metres. Further, the ownership of B schedule initially
alleged against defendants 4 and 5 was sought to be
corrected, as B schedule belonged to defendants 1 to 5.
Deletion of some portion of the plaint averments, after having
made specific admission; and to incorporate pleadings in
deviation from the original plaint, also could be gathered
from the amendment sought for. It is strange to see that an
amendment also sought for to treat the B schedule as a public
way since defendants 1 to 5 dedicated property for forming a
public pathway. Thus it appears that a drastic amendment to
change the entire nature of the case was sought for.
13. The crucial aspect to be decided in this case is the
reason for not filing the amendment before commencement
of trial as stated in the petition. The reason is nothing but
wrong legal advice given by the former lawyer. In this
context, it has to be observed that when a person is claiming
right of easement by prescription, he must know the
dominant as well as servient heritages and the respective
owners. To be precise, the person asserting easement right
ought not be the owner and occupier and the dominant owner
ought not be servient owner to whom the liability is imposed
by way of servient heritage. These vital aspects are matters
within the knowledge of the plaintiff and non-mentioning of
such vital details in the plaint even before commencement of
trial never be the outcome of any wrong legal advice.
Similarly, the width as well as the length of the way are also
matters well within the knowledge of the plaintiff,
particularly, when the right of easement of prescription has
been attempted to be established. Similarly, the stature of the
property otherwise as that of a public road also is a matter
known to the plaintiff. Thus it appears that the matters
intended to be incorporated by way of amendment cannot be
justified as one occurred due to any wrong legal advice.
Further, by allowing an amendment application after
completion of trial and after filing argument note by the
defendants to defeat the claim of the plaintiff, definitly,
would prejudice the defendants and therefore such an
amendment cannot be allowed. Here, initially the plaintiff
asserted that B schedule is passing through the property of
defendants 3 to 4. After having faced the full-fledged trial,
the plaintiff took a `U' turn to contend that the B Schedule is
passing through the property of defendants 1 to 5. This
would go to show that the plaintiff, who asserted right of
easement by prescription over B schedule property, did not
know the servient owner or servient heritage at the time of
filing the Suit. This would go to the root of the matter. The
other amendment including the length of the pathway also is
a matter known to the plaintiff at the time of filing the Suit
though he had used the pathway for 20 years to justify right
of easement by prescription. Thus it appears that though the
amendment was sought for finding fault on the earlier
counsel, in fact, facts which should be within the knowledge
of plaintiff at the time of filing Suit, failed to be incorporated
and after having completed the trial and getting the argments
advanced by the defendants through argument note, in order
to fill up the lacuna and change the entire nature of the Suit,
the proposed amendments sought to be incorporated.
For the said reasons, I am not inclined to revisit the
order of the learned Sub Judge as the order is perfectly
justified, since the same does not suffer from any perversity
or arbitrariness.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
APPENDIX OF OP(C) 2510/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN OS NO.
415/2010 FILED ON 21.07.2010.
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE RESPONDENTS 1 TO 3 DATED
05.10.2010.
Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT
SUBMITTED BY RESPONDENTS 4 AND 5
DATED 27.06.2015.
Exhibit P4 TRUE COPY OF THE APPLICATION FOR
AMENDMENT AS IA NO.4 OF 2021 DATED
01.10.2021 ALONG WITH THE AFFIDAVIT.
Exhibit P5 TRUE COPY OF THE OBJECTION SUBMITTED
BY RESPONDENTS 1 AND 2 TO EXHIBIT P4,
DATED 11.10.2021.
Exhibit P6 TRUE COPY OF THE OBJECTION SUBMITTED
BY RESPONDENTS 4 AND 6 TO EXHIBIT P4,
DATED 04.10.2021.
Exhibit P7 TRUE COPY OF THE ORDER DATED
02.12.2021 IN IA NO.4/2021 IN OS NO.
415/2010.
Exhibit P8 TRUE COPY OF THE COMPROMISE DECREE
DATED 03.07.2013 IN OS NO.398 OF 2010
ON THE FILES OF ADDITIONAL SUB JUDGE,
IRINJALAKUDA.
Exhibit P9 TRUE COPY OF THE ADVOCATE
COMMISSIONER REPORT AND ROUGH PLAN
SUBMITTED BY HER DATED 04.08.2010.
