Kerala High Court
Abdul Sammad vs Moosa Haji on 22 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
OP(C) NO. 2431 OF 2018
AGAINST THE ORDER IN I.A.NO.407/2018 IN OS 24/2015 OF SUB COURT,
VADAKARA
PETITIONER/PETITIONER/PLAINTIFF:
ABDUL SAMMAD, AGED 56 YEARS, S/O MUHAMMED YAHIYA,
NO.2, GANDHI NAGAR, KUMBAKONAM TALUK,
THANCHAVUR DISTRICT, TAMILNADU.
BY ADVS.
SRI.K.M.SATHYANATHA MENON
SRI.KAVERY S.THAMPI
RESPONDENTS/RESPONDENTS/DEFENDANTS 1,3 TO 7:
1 MOOSA HAJI, S/O MOIDU HAJI, VALIYAPARAMBATH HOUSE,
PONMERI POST, VATAKARA TALUK, KOZHIKODE - 673 541.
2 FOUSIYA, W/O. KOLERI MUHAMMED,
HOUSE NO.A.P.7/31, NOUSHAD MANZIL, KOROTH ROAD POST,
AZHIYUR AMSAM, KOZHIKODE-673 309.
3 NOUSHAD, S/O.KOLERI MUHAMMED, HOUSE NO.A.P.7/31,
NOUSHAD MANZIL, KOROTH ROAD POST, AZHIYUR AMSAM,
KOZHIKODE-673 309.
4 NAVAS, S/O. KOLERI MUHAMMED, HOUSE NO.A.P.7/31,
NOUSHAD MANZIL, KOROTH ROAD POST, AZHIYUR AMSAM,
KOZHIKODE-673 309.
5 FAHAD, S/O. KOLERI MUHAMMED, HOUSE NO.A.P.7/31,
NOUSHAD MANZIL, KOROTH ROAD POST, AZHIYUR AMSAM,
KOZHIKODE-673 309.
6 FAHIDA MAHOOD, D/O. KOLERI MUHAMMED,
HOUSE NO.A.P.7/31, NOUSHAD MANZIL, KOROTH ROAD POST,
AZHIYUR AMSAM, KOZHIKODE-673 309.
BY ADV.SRI.CIBI THOMAS
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No.2431 OF 2018
2
JUDGMENT
In this case, the plaintiff in O.S.No.24/2015
pending before the Sub Court, Vadakara, who is
aggrieved by dismissal of I.A.No.407/2018 as per
order dated 11.09.2018, disallowing the amendment
application moved by the petitioner for the 4th time,
has filed this Original Petition under Article 227 of
the Constitution of India.
2. Heard the learned counsel for the petitioner
as well as Adv.Sri.Cibi Thomas appearing for R2, R5
and R6. Though service to other respondents
completed, nobody appeared.
3. The learned counsel for the petitioner
submitted that the amendment application was
admittedly filed after examination of plaintiff as
PW1. The same would go to show that the amendment
application was filed after commencement of trial.
4. It is submitted by the learned counsel for
the petitioner that incorporation of relief of
OP(C).No.2431 OF 2018
declaration of title as that of the plaintiff, is
absolutely necessary to safe guard the interest of
the petitioner/plaintiff and, otherwise, the
plaintiff would be forced to file another suit, if
the present suit happened to be decreed in his
favour. It is submitted further that to avoid
multiplicity of proceedings also, amendment sought
for is liable to be allowed in the interest of
justice.
5. Though the learned counsel was asked to point
out the averments in the affidavit in support of the
petition, justifying compliance of proviso to Order
VI Rule 17 of CPC, the learned counsel miserably
failed to point out any such averments though she
read out paragraph 2 of the affidavit by which the
plaintiff canvassed amendment incorporating
declaration of title.
6. The learned counsel for the contesting
respondents zealously opposed the amendment pointing
out the fact that the present amendment application
OP(C).No.2431 OF 2018
filed without complying the statutory mandate as per
proviso to Order VI Rule 17, cannot be allowed since
the amendment was sought after commencement of trial.
7. The law is not in dispute that whenever an
amendment is being pressed into, after commencement
of trial, compliance of Order VI Rule 17 is
mandatory. The proviso to Order VI Rule 17 mandates
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. Here, the plaintiff wants to
declare the decree passed in another suit as null and
void. Consequently, the plaintiff asserted his title
over the property. Therefore, the plaintiff is well
aware, on the date of filing of the suit itself that,
title declaration also is necessary in the present
suit. The plaintiff not only failed to seek the
relief of declaration of title at the time of filing
of the suit, but later on three occasions when
OP(C).No.2431 OF 2018
amendments were proposed, the plaintiff failed to
incorporate the said relief.
Therefore, by way of amendment, that too filed 4th
time, such a vital plea, after commencement of trial
cannot be incorporated. This is the reason why the
learned Munsiff dismissed the application and I could
not find any perversity, illegality or arbitrariness
in the impugned order.
Accordingly, this Original Petition is dismissed.
Sd/-
A. BADHARUDEEN,
JUDGE
WW
OP(C).No.2431 OF 2018
APPENDIX OF OP(C) 2431/2018
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S NO.24 OF
2015 ON THE FILE 0F THE SUBORDINATE JUDGES
COURT VADAKARA DATED 29-7-2015.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE FIRST RESPONDENT IN O.S.NO.24 OF 2015
ON THE FILE OF THE SUBORDINATE JUDGES
COURT, VADAKARA DATED 19-12-2015.
EXHIBIT P3 TRUE COPY OF I.A.NO.407 OF 2018 IN O.S.
NO.24 OF 2015 ON THE FILE OF THE
SUBORDINATE JUDGES COURT, VADAKARA DATED
8-9-2018.
EXHIBIT P4 TRUE COPY OF THE ORDER IN I.A.NO.407 OF
2018 IN O.S.NO.24 OF 2015 ON THE FILE OF
THE SUBORDINATE JUDGES COURT, VADAKARA
DATED 11-9-2018.
