Yohannan vs Johny Varghese
2022 Latest Caselaw 3017 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
                THE HONOURABLE MR.JUSTICE V.G.ARUN
  THURSDAY, THE 17TH DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
                      OP(C) NO. 988 OF 2018
  AGAINST THE ORDER/JUDGMENT IN OS 776/2010 OF I ADDITIONAL
                     MUNSIFF COURT, ERNAKULAM
PETITIONER/S:

            YOHANNAN
            AGED 58 YEARS, S/O.LATE PATHROSE,KUZHIVELIPURATH
            HOUSE, THENGODE.P.O.,COCHIN - 682 030, THENGODE
            KARA,KAKKANAD VILLAGE, KANAYANNUR TALUK,ERNAKULAM
            DISTRICT.
            BY ADVS.
            SRI.K.C.ELDHO
            SRI.ANEESH JAMES
            SRI.JIJO THOMAS
            SRI.MALLENATHAN.M.

RESPONDENT/S:

    1       JOHNY VARGHESE
            AGED 60, KUZHIVELIPURATH HOUSE,THENGODE.P.O, COCHIN
            - 682 030, THENGODE KARA, KAKKANAD
            VILLAGE,KANAYANNUR TALUK, ERNAKULAM DISTRICT.
    2       BABY VARGHESE SO.LATE VARGHESE
            AGED 55, KUZHIVELIPURATH HOUSE,THENGODE.P.O, COCHIN
            - 682 030, THENGODE KARA, KAKKANAD
            VILLAGE,KANAYANNUR TALUK, ERNAKULAM DISTRICT.
    3       SAJU VARGHESE SO. LATE VARGHESE
            AGED 48, KUZHIVELIPURATH HOUSE,THENGODE.P.O, COCHIN
            - 682 030, THENGODE KARA, KAKKANAD VILLAGE,
            KANAYANNUR TALUK, ERNAKULAM DISTRICT,NOW RESIDING AT
            KUZHIVELIPURATH HOUSE,VENNIKULAM PO, THIRUVANIYOOR
            PANCHAYATH,KANAYANNUR TALUK, ERNAKULAM DISTRICT.
    4       PAULOSE SO.PATHROSE AGED 54
            KUZHIVELIPURATH HOUSE,NOW RESIDING AT DOOR
            NO.1/565A, THIRUVANIYOOR PANCHAYATH, THIRUVANIYOOR
            PO,ERNAKULAM DISTRICT.
    5       SUSAN DO.LATE PATHROSE
            AGED 56, KUZHIVELIPURATH HOUSE,THENGODE.P.O, COCHIN
            - 682 030, THENGODE KARA, KAKKANAD
            VILLAGE,KANAYANNUR TALUK, ERNAKULAM DISTRICT.
            BY ADV SRI.BENNY VARGHESE

        THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07.12.2021,
THE COURT ON 17.03.2022, DELIVERED THE FOLLOWING:
 O.P.(C) No.988 of 2018

                                   -2-



                             JUDGMENT

Dated this the 17th day of March, 2022

The petitioner is the plaintiff in O.S.No.776

of 2010 on the files of the First Additional

Munsiff's Court, Ernakulam. The suit is filed

for a permanent prohibitory injunction against

the respondents, based on the following

averments;

The petitioner is the owner of plaint

schedule property, obtained by him as per

partition deed No.238 of 1986 of Thrikkakkara

SRO. In the partition deed, right of way to the

plaint schedule property is specifically

provided. The pathway is shown as plaint B

schedule. As regards the entrance of the

pathway, there is a written family understanding,

which enables the petitioner to take vehicles to

the property covered by the partition deed. The O.P.(C) No.988 of 2018

suit was necessitated when respondents 1 to 3

constructed foundation for a compound wall by

encroaching into the plaint schedule pathway.

2. The respondents 1 to 3 filed written

statement refuting the plaint claim. They also

preferred another suit, O.S.No.807 of 2010

seeking to injunct the petitioner from

encroaching upon their property. The suits were

consolidated and an Advocate Commissioner was

appointed, who, with the assistance of a private

surveyor, measured and identified the plaint

schedule properties in both suits. Even though

the suits were referred to mediation in the

meanwhile, the mediation was not successful and

the suits got listed for joint trial.

3. After commencement of trial, the

petitioner preferred an application (I.A.No.1686

of 2018) for amending the plaint in tune with the

Advocate Commissioner's report and plan. During O.P.(C) No.988 of 2018

pendency of the amendment application, trial in

the suit was concluded. Thereafter, the

application was dismissed vide Ext.P7 order,

primarily for the reason that the application was

filed at a belated stage. Aggrieved, this

original petition is filed.

4. Adv.K.C.Eldho, learned Counsel for the

petitioner, contended that the trial court had

dismissed the amendment application without

understanding the purport of the amendment, which

was confined to correction of minor mistakes in

the plaint in accordance with the Commission

report and sketch. The report and sketch are

prepared on the basis of the recitals in the

partition deed and the family agreement. In the

plaint, there occurred some mistakes with respect

to the width of B schedule pathway at certain

points. The Advocate Commissioner having

correctly measured the width, the petitioner O.P.(C) No.988 of 2018

waited the correct measurement to be

incorporated, which does not in anyway alter the

contentions in the suit or cause prejudice to the

respondents. As the plaintiff has a right of

easement by grant over the pathway and the

amendment is necessary to specify the actual

area. The application for amendment was filed

before the closure of evidence and reasons for

delay in preferring the application was clearly

set forth in the affidavit. The court below

committed an illegality in dismissing the

application relying on the proviso to Order VI

Rule 17, without considering the relevant

aspects.

5. Learned Counsel for the respondent

supported the impugned order by contending that

the attempt of the petitioner is not as innocuous

as is sought to be made out by his Counsel. The

amendment, if allowed, will alter the very nature O.P.(C) No.988 of 2018

of the suit. Moreover, the application having

been filed after commencement of trial, was

rightly dismissed by the trial court in view of

the interdiction under the proviso to Order VI

Rule 17.

6. Learned Counsel on either side put forth

extensive arguments on the factual aspects of the

suit. I refrain from considering the factual

contentions since any finding on those aspects at

this stage will impact the decision in the suit.

Being so, the only question to be considered is

whether the finding in the impugned order that

the amendment application is hit by the proviso

to Order VI Rule 17 is correct or not. The

petitioner does not dispute the fact that the

application for amendment was filed after

commencement of trial. In this context, it is

necessary to consider Order VI Rule 17, extracted

here under for easy reference;

O.P.(C) No.988 of 2018

"17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties :

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

Going by the proviso, it is for the petitioner

to establish that in spite of due diligence he

could not have raised the matter before the

commencement of trial. Pertinently, the only

explanation offered by the petitioner in his

affidavit filed along with the petition for

amendment is as follows:

"In the plaint 'B' schedule property, the extent of the property is referred to as O.P.(C) No.988 of 2018

approximately 2.500 cents and resurvey number is mentioned as 312/4 alone. The resurvey numbers and extent of the pathway was stated in the plaint without measuring the properties. The actual extent, measurements and resurvey cumbers of the plaint B'schedule pathway and the area encroached by the defendants 1 to 3 in constructing granite foundation blocking the plaint B schedule pathway etc are made known only after measurement and the same are to be incorporated in the plaint and in the description of plaint B schedule pathway. The plaintiff omitted to incorporate the aforesaid aspects in the plaint earlier as the above case was referred for mediation and many round discussions were held in mediation and there was every likelihood of an amicable settlement of the issues and the plaintiff reasonably believed that the matter will be settled in mediation. But, later the mediation failed and thereafter, the above case was listed for trial. The omission to incorporate the aforesaid aspects in the plaint was not deliberate or willful, but due to an inadvertent mistake."

7. In their objection, the respondents have

stated that the proposed amendment is not

consequent to the survey commission report and O.P.(C) No.988 of 2018

the plaintiff is not expected to carve out a new

pathway, different from what is pleaded in the

plaint. According to the respondents, B schedule

pathway, as pleaded in the plaint, and the

pathway sought to be incorporated by correcting

the measurements and survey numbers are entirely

different. In such circumstances, the finding of

the trial court that the amendment, if allowed,

will cause irreparable injury and loss to the

defendants, cannot be faulted.

8. No doubt, the Rules of Procedure are

intended to be a handmade to the administration

of justice and mere delay in making an

application for amendment, by itself, is not

sufficient to refuse the prayer if the party is

able to satisfy the court that in spite of due

diligence, he could not raise the issue before

commencement of trial. At the same time, it is

the settled law that, while courts should be O.P.(C) No.988 of 2018

liberal in allowing amendment of pleadings, it

should be ensured that no prejudice is caused to

the other party.

9. On scrutiny of the pleadings in the

amendment application, the objection and on

careful consideration of the arguments advanced,

I find the petitioner to have failed in

establishing due diligence on his part. I also

find substantial force in the contention that the

amendment, if allowed at the stage after trial,

will cause substantial prejudice to the

respondents.

For the aforementioned reasons, the original

petition is dismissed.

Sd/-

V.G.ARUN JUDGE Scl/ O.P.(C) No.988 of 2018

APPENDIX OF OP(C) 988/2018

PETITIONER EXHIBITS EXHIBIT P1: A TRUE COPY OF THE PLAINT IN O.S.NO.776 OF 2010 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT AT ERNAKULAM.

EXHIBIT P2: A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 TO 3 IN EXHIBIT P1 SUIT.

EXHIBIT P3: A TRUE COPY OF THE SURVEY COMMISSION REPORT IN EXHIBIT P1.

EXHIBIT P4: A TRUE COPY OF THE SURVEY SKETCH PRODUCED ALONG WITH EXHIBIT P3.

EXHIBIT P5: A TRUE COPY OF THE AMENDMENT PETITION IN IA.NO.1686 OF 2018 IN EXHIBIT P1 SUIT.

EXHIBIT P6: A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANTS 1 TO 3 TO EXHIBIT P5.

EXHIBIT P7: A TRUE COPY OF THE ORDER DATED 19.3.2018 IN EXHIBIT P5 AMENDMENT PETITION.