Kerala High Court
Santhosh Mathew vs Emmanual Chacko on 18 January, 2023
OP(C) NO. 71 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
OP(C) NO. 71 OF 2023
AGAINST THE ORDER/JUDGMENT IN OS 217/2017 OF MUNSIFF
MAGISTRATE, ERATTUPETTA
PETITIONER/S:
1 SANTHOSH MATHEW
AGED 56 YEARS, SON OF MATHEW
ELIPPULLIKKATTU HOUSE,
POOVATHODU BHAGAM,
POOVATHODU PO., THIDANAD KARA,
KONDOOR VILLAGE, KOTTAYAM DISTRICT, PIN - 686578
2 ANCY MATHEW
AGED 50 YEARS
WIFE OF SANTHOSH
ELIPPULLIKKATTU HOUSE,
POOVATHODU BHAGAM,
POOVATHODU PO., THIDANAD KARA,
KONDOOR VILLAGE, KOTTAYAM DISTRICT, PIN - 686578
BY ADVS.
R.PARTHASARATHY
SEEMA
RESPONDENT/S:
EMMANUAL CHACKO
AGED 72 YEARS
MANGALASSERI HOUSE
THEKKENADU KARA, NADUVILE VILLAGE,
VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686146
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 71 OF 2023
2
JUDGMENT
Aggrieved by Ext.P6 order passed in I.A.No.1/2021 in
OS No.217/2017 by the Court of the Munsiff, Erattupetta,
the defendants in the suit have filed the original petition.
The respondent is the plaintiff.
2. The relevant facts leading to Ext.P6 order are that:
the respondent has filed the suit against the petitioners for
a decree for a permanent prohibitory injunction. The
petitioners have resisted the suit by filing Ext.P2 written
statement. Ext.P3 is the commission report. Long
thereafter, the respondent filed IA No.1/2021 (Ext.P4)
seeking leave to amend the plaint. Even though the
petitioners objected to Ext.P4 application by filing Ext.P5
written objection, the court below, by the impugned Ext.P6
order has allowed Ext.P4 application. Ext.P6 is palpably
wrong and unsustainable in law. Hence, the original
petition.
3. Heard; Sri.R.Parthasarathy, the learned counsel
OP(C) NO. 71 OF 2023
appearing for the petitioners on admission.
4. The point is, is there any illegality in Ext.P6 order.
5. The respondent had originally filed the suit, for a
decree for injunction.
6. Subsequently, after Ext.P3 report was filed, the
respondent filed Ext.P4 application, seeking leave to
amend the plaint by incorporating a prayer for declaration
of title.
7. The petitioners filed Ext.P5 objection to Ext.P4
application, inter-alia, contending that the amendment
would change the very nature of the suit.
8. The court below, by the impugned Ext.P6 order
allowed Ext.P4 application by observing as follows:
"8. The suit is for permanent prohibitory injunction. Now,
through the amendment the petitioner seeks to
incorporate a prayer for declaration also. It is true that
the petitioner sought a lengthy amendment. However, it
can be seen that in order to prevent the multiplicity of
proceedings and for the fair disposal and also to
determine the real questions in controversy between the
parties, the amendment sought is necessary. No
prejudice will be caused to the respondents if the
OP(C) NO. 71 OF 2023
amendment sought is allowed. The nature of case also
will not be changed. In the result, this petition is allowed.
Carryout amendment within 7 days".
9. In Life Insurance Corporation of India vs.
Sanjeev Builders Pvt. Ltd and another [2022 SCC
online SC 1128], the Honourable Supreme Court has laid
down elaborate guidelines for deciding applications filed
for amendment of pleadings. It is emphatically held that
the applications for amendment have to be liberally
considered, unless the claim sought to be incorporated by
way of amendment is barred by limitation or hit by Order 2
Rule 2 of the Code of the Civil Procedure. Furthermore,
such applications have to be allowed to avoid multiplicity of
proceedings.
10. On an evaluation of the pleadings and materials on
record, I find that Ext.P4 application has been filed seeking
an additional prayer for declaration and consequential
amendments. In fact, the incorporation of the said relief
would only avoid multiplicity of proceedings.
OP(C) NO. 71 OF 2023
11. I do not find any illegality or error in Ext.P6 order
warranting interference by this Court under Article 227 of
the Constitution of India. The original petition fails and is
hence dismissed.
Needless to mention, the petitioners would be at
liberty to file their additional written statement to the
amended plaint within one month from today.
Sd/-
C.S.DIAS
JUDGE
rkc/18.01.23
OP(C) NO. 71 OF 2023
APPENDIX OF OP(C) 71/2023
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE PLAINT IN O,S.NO.217/2017
ON THE FILE OF MUNSIFF COURT, ERATTUPETTA.
Exhibit-P2 TRUE COPY OF THE WRITTEN STATEMENT FILED
BY THE DEFENDANT IN O.S.NO.217/2017 ON THE
FILE OF THE MUNSIFF COURT, ERATTUPETTA
Exhibit-P3 TRUE COPY OF THE COMMISSION REPORT DATED
16.11.2017 FILED BY ADVOCATE COMMISSIONER
IN OS.NO.217/2017 ON THE FILE OF THE
MUNSIFF COURT, ERATTUPETTA
Exhibit-P4 TRUE COPY OF THE APPLICATION FOR AMENDMENT
OF THE PLAINT FILED AS I.A.NO,1/2021 DATED
22.06.2021 IN O.S.NO.217/2017 ON THE FILE
OF MUNSIFF COURT, ERATTUPETTA
Exhibit-P5 TRUE COPY OF THE COUNTER DATED 08.09.2021,
FILED BY THE RESPONDENT IN I.A.NO.1/2021
Exhibit-P6 TRUE COPY OF THE ORDER DATED 29.07.2022 IN
I.A.NO,1/2021 IN O.S.NO.217/2017 ON THE
FILE OF MUNSIFF COURT, ERATTUPETTA
