Gireeshkumar vs Sanal Kumar
2022 Latest Caselaw 5645 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
          THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
  FRIDAY, THE 27TH DAY OF MAY 2022 / 6TH JYAISHTA, 1944
                     OP(C) NO. 688 OF 2022
IN RESPECT OF ORDER DATED 04.01.2022 IN IA NO.487/2021 IN
          OS 337/2015 OF MUNSIFF COURT, MAVELIKKARA
PETITIONER/PETITIONER/PLAINTIFF :

           GIREESHKUMAR,
           AGED 58 YEARS,
           S/O. NARAYANA PILLAI,
           THUNDATHIL SARANYA BHAVANAM,
           ORIPORAM MURI, CHENNITHALA VILLAGE,
           ALAPPUZHA DISTRICT, PIN - 690105
           BY ADVS.
           B.RENJITHKUMAR
           CLARA SHERIN FRANCIS


RESPONDENTS/COUNTER PETITIONS/DEFENDANTS :

    1      SANAL KUMAR,
           AGED 67 YEARS,
           S/O. NARAYANA PILLAI,
           VILAYILPARAMBIL HOUSE,
           ORIPORAM MURI, CHENNITHALA VILLAGE,
           ALAPPUZHA DISTRICT, PIN - 690105
    2      SUJATHA KUMARI,
           AGED 55 YEARS,
           W/O. SANAL KUMAR,
           VILAYILPARAMBIL HOUSE,
           ORIPORAM MURI, CHENNITHALA VILLAGE,
           ALAPPUZHA DISTRICT, PIN - 690105
           BY ADVS.
           RINNY STEPHEN CHAMAPARAMPIL
           ASHA ELIZABETH MATHEW(K/1557/2003)

        THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
27.05.2022,    THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 O.P.(C)No.688 of 2022
                                  ..2..




                                                                  "CR"


                         A.BADHARUDEEN, J.

   ------------------------------------------------------------
                        O.P.(C)No.688 of 2022
    ------------------------------------------------------------
             Dated this the 27th day of May, 2022


                           JUDGMENT

This is an original petition filed under Article 227

of the Constitution of India by the plaintiff in O.S.No.337

of 2015 aggrieved by the order in I.A.No.487 of 2021

dated 04.01.2022 in the above case. Respondents herein

are the defendants in the above suit.

2. The questions emerge for consideration in

this matter are as under;

(1) Can a party to a civil suit seek

amendments to their pleadings without narrating and

justifying sufficient foundation to get the amendment O.P.(C)No.688 of 2022 ..3..

allowed?

(2) Is it permissible to allow amendments

without justifying the same in the affidavit in support of

the amendment petition?

3. Admittedly, after commencement of trial,

the plaintiff herein filed I.A.No.487 of 2021 and sought for

three amendments to be carried out in the plaint. As per

the order impugned, the learned Munsiff allowed

amendments 1 and 2, as sought for, while disallowing the

amendment sought for as item No.3 in the amendment

petition.

4. It is submitted by the learned counsel for

the petitioner that, initially, the property of the defendants

excluding two cents on the eastern side was scheduled

and this mistake was not noticed till commencement of

trial. On getting notice of the same, the petitioner filed

amendment petition to incorporate the said omission by O.P.(C)No.688 of 2022 ..4..

scheduling the property of the defendants as 3.42 ares

instead of 1.65 ares originally scheduled.

5. According to the learned counsel for the

petitioner, if the amendment sought for is not allowed, the

purpose of the suit itself would be defeated. However,

when the learned counsel for the petitioner was asked to

justify the necessity of the third amendment with

reference to the averments in the affidavit in support of

the amendment petition, the learned counsel failed to

point out substantive or even evasive averments in the

affidavit in support of the amendment petition or the

foundation for the amendment as sought for.

6. It is argued by the learned counsel for the

respondents that the amendment sought for, after

commencement of trial, shall be subject to the proviso to

Order 6 Rule 17, despite that the court below allowed

prayer Nos.1 and 2 in the amendment, since there was O.P.(C)No.688 of 2022 ..5..

foundation for the same in the original plaint itself and in

the affidavit in support of the amendment petition. He

submitted further that, but, nothing stated in the affidavit

in support of the amendment petition justifying the

amendment of schedule of the defendants property in any

manner. According to the learned counsel, for this reason

alone, the amendment sought for could not be allowed

and the court below rightly done so. He submitted further

that the dispute in between the plaintiff and defendants in

the matter of fixation of boundary of the properties, which

were originally obtained by a partition deed and

subsequently, exchanged by executing respective

exchange deeds between them, is the subject matter of

adjudication in the suit.

7. According to the learned counsel for the

respondents, the extent of property covered by the

exchange deed, for which, the boundary, sought to be O.P.(C)No.688 of 2022 ..6..

fixed, is only to an extent of 1.65 ares which was

originally scheduled in the plaint and now the attempt of

the plaintiff is to incorporate two cents more property

lying on the eastern side of 1.65 ares of property, which is

not a subject matter of the exchange deed. He also

submitted that even in the plaint or in the affidavit in

support of the petition, no one could found any foundation

to substantiate the amendment and thus the amendment

sought for as item No.3 is without any base and

accordingly, the court below rightly disowned the same.

He also submitted that, accepting the order impugned, the

petitioner carried out two amendments allowed, on

24.02.2022, and the defendants filed additional written

statement also in view of the incorporation of the said

amendment.

8. It is submitted by the learned counsel for

the petitioner that the apprehension of the O.P.(C)No.688 of 2022 ..7..

plaintiff/petitioner should be given emphasis and in the

interest of justice, the amendment is liable to be allowed.

9. It is true that the parties to a civil suit can

carryout amendment of their respective pleadings and the

intent behind Order 6 Rule 17 of the Code of Civil

Procedure is to address the real grievance of the parties

and to decide the dispute finally. Thus, all amendments

which are necessary in the interest of justice shall be

allowed to address the matter in controversy and to give a

quietus to the litigation. However, the liberal view in the

matter of amendment is restricted by the proviso to Order

6 Rule 17 when amendment got canvassed, after

commencement of trial. Proviso to Order 6 Rule 17

imposes a duty on the Court when amendment sought for

after commencement of trial and it is provided therein

that no application for amendment shall be allowed, after

the trial has commenced, unless the Court comes to the O.P.(C)No.688 of 2022 ..8..

conclusion that inspite of due diligence, the party could

not have raised the matter before the commencement of

trial.

10. In this matter, as rightly argued by the

learned counsel for the respondents and as could be read

out from the averments in the affidavit in support of the

amendment petition, no foundation to see the necessity of

amendment sought for as item No.3 in the petition could

be found out though the said amendment was canvassed

after commencement of trial. In this context, it is held

that a party to a civil suit cannot seek amendments to

their pleadings without narrating and justifying sufficient

foundation to get the amendment allowed and without

convincing the Court regarding the necessity of

amendment. Similarly, it is not permissible to allow

amendments without justifying the same in the affidavit in

support of the amendment petition. It is held further that O.P.(C)No.688 of 2022 ..9..

after commencement of trial, without complying the

satisfaction mandated by proviso to Order 6 Rule 17 CPC,

amendment cannot be allowed.

11. The upshot of the above discussion is that

the learned Munsiff rightly dismissed the application

insofar as amendment No.3 sought for therein. Going by

the order, I do not find any illegality, perversity or

arbitrariness to interfere with the impugned order, in a

petition filed under Article 227 of the Constitution of India.

Therefore, this original petition lacks merit and the same

deserves dismissal.

Accordingly, this original petition is dismissed.

Sd/-

A.BADHARUDEEN, JUDGE rkj O.P.(C)No.688 of 2022 ..10..

APPENDIX OF OP(C) 688/2022

PETITIONER EXHIBITS Exhibit1 TRUE COPY OF THE ORDER IN IA NO.

487/2021 IN OS 337/2015 IN THE FILE OF MUNSIFF COURT, MAVELIKKARA Exhibit2 TRUE COPY OF THE PLAINT IN OS 337/2015 IN THE FILE OF MUNSIFF COURT, MAVELIKKARA Exhibit3 TRUE COPY OF THE WRITTEN STATEMENT DATED 3.2.2016 FILED BY THE DEFENDANT Exhibit4 TRUE COPY OF THE AMENDMENT APPLICATION DATED 1.11.2021 IN IA 487/2021 FILED BY THE PETITIONER Exhibit5 TRUE COPY OF THE OBJECTION DATED 17.11.2021 FILED BY THE 1ST RESPONDENT