Kerala High Court

Damodara Pancikar vs Lekshmikutty Amma @ Lekshmi Amma on 21 December, 2023

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
  THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
                      OP(C) NO. 2153 OF 2023
AGAINST THE ORDER/JUDGMENT OS 420/2015 OF MUNSIFF COURT,CHENGANNUR
PETITIONERS/PETITIONERS/DEFENDANTS 1 & 2:

    1     DAMODARA PANCIKAR
          AGED 88 YEARS
          ARAMPATHU VEEDU, KUTTAMPEROOR MURI, MANNAR,
          PIN - 689623
    2     RETNAMMA
          AGED 86 YEARS
          ARAMPATHU VEEDU, KUTTAMPEROOR MURI, MANNAR,
          PIN - 689623
          BY ADVS.
          RINNY STEPHEN CHAMAPARAMPIL
          ASHA ELIZABETH MATHEW


RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 4 TO 7:

    1     LEKSHMIKUTTY AMMA @ LEKSHMI AMMA,
          PUTHIRETHU VEEDU, KUTTEMPEROOR MURI, MANNAR, PIN -
          689623
    2     MOHANAN PILLAI @MOHANAPANICKAR
          KARTHIKA, KURATHIKKADU , MANNAR, PIN - 689622
    3     THANKAMMA
          PUTHIRETHU VEEDU, KUTTEMPEROOR MURI, MANNAR, PIN -
          689623
    4     RUGMINI AMMA
          GENERAL STORES (USHALAYAM), KIZHAKKEVAZHY MURI,
          THRIPPERUMTHURA, PIN - 690105
    5     ROOPA
          D/O. PARAMESWARA PANICKAR, GENERAL STORES (USHALAYAM),
          KIZHAKKEVAZHY MURI, THRIPPERUMTHURA, PIN - 690105
    6     ANOOP
          /O. PARAMESWARA PANICKAR, GENERAL STORES (USHALAYAM),
          KIZHAKKEVAZHY MURI, THRIPPERUMTHURA, PIN - 690105
          BY ADV K.RAJESH KANNAN


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.12.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C).No. 2153 of 2023
                           ..2..


                    J U D G M E N T

Dated this the 21st day of December, 2023

The petitioners herein are defendants 1 and 2 in

O.S.No.420/2015 of the Munsiff Court, Chengannur.

They are aggrieved by Ext.P7 order, which refused

Ext.P5 application for amendment of the written

statement.

2. Heard the learned counsel for the petitioners

and the respondents.

3. Learned counsel for the petitioners submitted

that, despite a specific title being claimed in

the plaint on the strength of a sale deed of the

year 1971 (Sale Deed no. 1922/1971), the same was

not produced along with the plaint, contrary to

the mandate of Order VII, Rule 14. Nor was any

explanation offered by the plaintiffs in not

producing the said title deed along with plaint.

The petitioners/defendats filed Ext.P2 written

..3..

statement without having the advantage of perusing

the title deed claimed by the plaintiffs, wherein,

they have denied the sanctity of the said title

deed, contending that, such a document, as claimed

by the plaintiffs, has never come into force and

that the defendants have not received any

consideration for the same. It was also contended

that the document was got registered in favour of

the plaintiffs only as a security for a family

arrangement and it was not intended to be acted

upon as a sale deed. Learned counsel would explain

that, the defendants were constrained to take such

an imprecise contention, only because of the

disadvantage of not perusing the sale deed relied

upon by the plaintiffs, since it was not produced

by the plaintiffs along with the plaint, or

subsequently.

4. Learned counsel then submitted that, the plaint

was amended twice. Initially, there was an

amendment to the schedule. Thereafter, substantial

..4..

amendments were incorporated to the pleadings as

well, as could be seen from Ext.P3 amended plaint.


On    that    occasion         also,    the    plaintiffs        did   not

choose to produce the              title deed relied upon. To

the          amended             Ext.P3               plaint,          the

defendants/petitioners                 filed    Ext.P4        additional

written      statement.           The     matter       was    thereafter

listed       for    trial       and     the     2nd    plaintiff       was

examined as PW 1, through whom, a certified copy

of the title deed was marked. Thereafter, the 1st

plaintiff was examined as PW 2, at which point of

time, the original title deed of the plaintiff was

produced for the first time and the same was

marked through PW 2. Learned counsel would point

out that, such document was produced without

obtaining any leave from the court, as enjoined by

Order VII, Rule 14. Thereafter, the plaintiffs'

evidence was closed and before commencement of the

defendants evidence, the defendants filed Ext.P5

I.A., seeking amendment to the written statement,

to incorporate an additional pleading to the

..5..

effect that signature contained in the title deed

is not that of the 1st defendant. Ext.P6 is the

objection preferred by the plaintiffs to the said

interlocutory application. Ext.P5 application for

amendment was dismissed vide the impugned Ext.P7

order by the Court below, essentially on two

grounds, that is to say, that the pleadings sought

to be amended are inconsistent with the pre-

existing pleadings; and secondly, delay. In the

afore referred facts and circumstances, Ext.P7

order is bad in law, warranting interference by

this Court, is the final submission of the learned

counsel.

5. Learned counsel for the respondents/plaintiffs

would submit that, two documents were executed on

the same day consecutively, the 1st by one

Gopinatha Panickar in favour of the 1st defendant,

vide Sale deed no.1923/1971; followed by a sale

deed bearing no.1922/1971 by the 1st defendant in

favour of the plaintiffs. The learned counsel

..6..

would emphatically submit that, the execution of

the document is categorically admitted by the 1st

defendant in the written statement, especially in

paragraph no.14. All what the defendant contented

was that the document was not intended to be acted

upon and that the same was executed towards

security for a family arrangement etc. The

execution per se was not denied, wherefore, the

present pleading sought to be incorporated,

seeking to deny the signature, is wholly

inconsistent with the existing pleadings.

Besides, as rightly found by the lower court, the

present application for amendment is highly

belated as well, especially in the context of the

Proviso to Order VI, Rule 17.

6. Having heard the learned counsel appearing on

both sides, this Court is of the opinion that the

instant original petition has to be allowed. This

Court finds substantial merit in the petitioners'

contention that the petitioners/defendants,

..7..

despite exercise of due diligence, could not have

sought for the subject amendment to the written

statement before the commencement of trial,

inasmuch as, the title deed under which the

plaintiff sets up title was withheld from the

notice of the defendants, until the plaintiff was

examined as PW2. Order VII, Rule 14 mandates the

suit document to be produced along with the

plaint. Order VII, Rule 14(3) speaks of an embargo

in respect of production of such a document at a

subsequent stage of the suit, without the leave of

the Court. It is also relevant to note that, the

title deed relied upon by the plaintiff is a

document of the year 1971, though executed by the

1st defendant himself in favour of the plaintiffs.

At the time of institution of the suit itself, the

1st defendant was aged 80 years. Inconvenienced

with want of an opportunity to peruse the title

deed, contentions were taken in the written

statement to the effect that, the document was

executed as a security for a family arrangement,

..8..

that it was not a sale deed as claimed for by the

plaintiffs, that it was not intended to be acted

upon and that the said document is a sham one.

Only upon seeing the title deed during the course

of examination of PW2, the defendant got the 1st

opportunity to verify the signature therein, which

according to the defendants is not that of the 1st

defendant. In such circumstances, this Court is of

the opinion that the delay caused is not

attributable to the defendants.

7. Another aspect which was found against the

petitioners/defendants herein is that, if the plea

sought to be amended is permitted, the same would

be inconsistent with the existing pleadings. On

this point, petitioners' counsel relied upon a

judgment of the Hon'ble Supreme Court in Baldev

Singh and others v. Manohar Singh and another

[2006 (6) SCC 498], wherein it was observed by the

Hon'ble Supreme Court, in paragraph no.16, that

inconsistent pleas can be raised by the defendants

..9..

in the written statement, although, the same may

not be permissible in the case of plaint. Another

decision of the Hon'ble Supreme Court relied upon

by the petitioners is Nitaben Dinesh Patel v.

Dinesh Dahyabhai Patel [2021 (6) KLT 57], wherein

the Hon'ble Supreme Court held, in paragraph no.7,

that an amendment to incorporate certain facts,

which came to the knowledge of the party seeking

amendment, subsequent to the commencement of the

trial, may be allowed, if the same is required for

determining the real question of controversy

between the parties. Both the decisions are on all

fours to the fact situation obtaining in this

case.

8. For the afore-referred reasons, both the

grounds of delay and inconsistent plea, which were

found against the petitioners in dismissing the

amendment sought for, cannot hold good in law. In

the circumstances, the impugned Ext.P7 order is

set aside. Ext.P5 amendment application is

..10..

allowed. The learned Munsiff will ensure that the

amendments are carried out and shall proceed with

the matter, in accordance with law.

This Original Petition is allowed as indicated

above.

Sd/-

C. JAYACHANDRAN JUDGE

..11..

APPENDIX OF OP(C) 2153/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN O.S.NO.420/2015 OF THE MUNSIFF'S COURT, CHENGANNUR Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S. NO. 420/2015 OF THE MUNSIFF'S COURT CHENGANNUR Exhibit P3 A TRUE COPY OF THE AMENDED PLAINT IN O.S.NO. 420/2015 OF THE MUNSIFF'S COURT CHENGANNUR Exhibit P4 A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S.NO.420/2015 OF THE MUNSIFF'S COURT CHENGANNUR Exhibit P5 A TRUE COPY OF I.A. NO. 13/2023 IN O.S.NO. 420/2015 OF THE MUNSIFF'S COURT, CHENGANNUR Exhibit P6 A TRUE COPY OF THE OBJECTION FILED BY THE PLAINTIFFS TO I.A. NO. 13/2023 IN O.S.NO. 420/2015 OF THE MUNSIFF'S COURT, CHENGANNUR Exhibit P7 A TRUE COPY OF THE ORDER DATED 27/09/2023 OF THE MUNSIFF'S COURT, CHENGANNUR IN I.A. NO. 13/2023 OF