Kerala High Court
Nangeelichikandiyil Kunhali ... vs Kizhakkahyil Thamasikkum ... on 17 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
OP(C) NO. 785 OF 2014
IN OS 337/2011 OF MUNSIFF COURT, NADAPURAM
PETITIONERS:
1 NANGEELICHIKANDIYIL KUNHALI MASTER,
AGED 60 YEARS,
S/O.KUNHABDULLA, KUMMAMKODE AMSOM,
NADAPURAM DESOM, VADAKARA TALUK,
KOZHIKODE DISTRICT.
2 ERAYINTAVIDA BASHEER,
AGED 38 YEARS,
S/O.MAMMU HAJI, -DO-, -DO-.
3 ERAYINTAVIDA HAMEED,
AGED 44 YEARS,
S/O.MAMMU HAJI, BUSINESS, -DO-, -DO-.
4 THENGOTH HARIS,
AGED 40 YEARS,
S/O.KUNHABDULLA, BUSINESS, -DO-, -DO-.
BY ADV SRI.R.K.MURALEEDHARAN
RESPONDENT:
KIZHAKKAHYIL THAMASIKKUM ANAYATHUMKEEZHIL RASHID,
AGED 39 YEARS,
S/O.MAMMU HAJI, WORKING ABRROAD,
VELLOOR AMSOM, CHALAPPURAM DESOM,
VADAKARA TALUK, KOZHIKODE DISTRICT,
KERALA STATE.
BY ADVS. SRI.MATHEWS K.UTHUPPACHAN
SRI.TERRY V.JAMES
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C)No.785/2014
-:2:-
Dated this the 17th day of January,2023
JUDGMENT
Aggrieved with Ext P6 order passed in
I.A.No.97/2014 in O.S.No.337/2011 by the Court of the
Munsiff, Nadapuram, the defendants in the suit have
filed the original petition. The respondent is the
plaintiff.
2. The antecedent facts leading to Ext P6 order, in
narrow compass, are:
(i) The respondent has filed the suit for a decree
of permanent prohibitory injunction and other
ancillary reliefs.
(ii) The suit was resisted by the petitioners by
filing Ext P2 written statement.
(iii) The Advocate Commissioner has filed Ext P3
report.
(iv) Subsequent to Ext P3 report, the petitioners
filed I.A.No.97/2014 (Ext P4), to amend the
written statement and to incorporate a
O.P.(C)No.785/2014
counter claim, for a decree of recovery for
possession. The application was opposed by
the respondent through Ext P5 counter
statement.
(vi)The court below, by the impugned Ext P6
order, rejected Ext P4 application.
(vii)Ext P6 is manifestly wrong and unsustainable
in law. Hence, the original petition.
3. Heard; Sri..R.K. Muraleedharan, the learned
counsel appearing for the petitioners and Sri. Mathews
K.Uthuppachan, the learned counsel appearing for the
respondent.
4. The short point is, is there any illegality in
Ext P6 order?.
5. The suit is filed by the respondent for a
decree of permanent prohibitory injunction.
6. Initially, the respondent filed Ext P2 written
statement. Subsequent to the filing of Ext P3
O.P.(C)No.785/2014
commission report, the petitioners deemed it fit to
amend the written statement to incorporate a counter
claim for a decree for recovery of possession.
Accordingly, they filed Ext P4 application, seeking
leave to amend the written statement. The same was
objected to by the respondent.
7. The court below rejected Ext P4 application
by Ext P6 order.
8. A reading of Ext P6 order would show that
the court below has decided Ext P4 application on the
merits of the counter-claim, rather than merits of the
application i.e., whether the amendment sought in Ext
P4 was justifiable or not. The course adopted by the
court below is not what is envisaged under Order 6
Rule 17 of the Code of Civil Procedure, 1908(in short,
'Code'), while considering an application filed for
amendment of pleadings.
9. In Life Insurance Corporation of India v.
O.P.(C)No.785/2014
Sanjeev Buildinders Pvt. Ltd. & Ors. [2022 SCC
Online 1128], the Hon'ble Supreme Court has laid
down elaborate guidelines to be followed by the courts
while dealing with application filed under Order 6
Rule 17 of the Code. It is succinctly held that an
application seeking leave to amend the pleadings has
to be liberally considered, unless the claim is time
barred or hit by the provisions of Order 2 Rule 2 of the
Code and that applications of the above nature have
been allowed, to avoid multiplicity of proceedings.
10. In the light of the exposition of law in the
above-cited decision and for the reason that the court
below has gone into the merits of the counter-claim
rather than the merits of Ext P4 application, I am
definitely of the view that the court below has
overstepped its authority and powers warranting
interference by this Court under Article 227 of the
Constitution of India.
O.P.(C)No.785/2014
In the result, I allow the original petition as
follows:
(i) Ext P6 order is set aside.
(ii) Ext P4 application is allowed.
(iii) The petitioners shall amend the written
statement within the prescribed time period.
(iv) The court below shall permit the respondent
to file their re-joinder to the amended written
statement and the written statement to the
counter claim.
(v) As the suit is of the year 2011, the court below
shall make an endeavour to dispose of the
suit, in accordance with law, as expeditiously
as possible.
Sd/-
C.S.DIAS,JUDGE
DST/17.01.23 //True copy//
P.A.To Judge
O.P.(C)No.785/2014
APPENDIX
PETITIONER EXHIBITS
EXHIBIT-P1: TRUE COPY OF THE PLAINT IN O.S.NO.337/2011.
EXHIBIT-P2: TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE PETITIONERS.
EXHIBIT-P3: TRUE COPY OF THE REPORT OF THE
COMMISSIONER.
EXHIBIT-P4: TRUE COPY OF THE PETITION ALONG WITH THE
AFFIDAVIT FILED BY THE DEFENDANTS FOR
AMENDMENT OF THE WRITTEN STATEMENT DATED
16.01.2014.
EXHIBIT-P5: TRUE COPY OF THE COUNTER FILED BY THE
PLAINTIFF DATED 18.01.2014.
EXHIBIT-P6: TRUE COPY OF ORDER IN I.A.NO.97/2014 IN
O.S.NO.337/2011 DATED 25.02.2014.
RESPONDENT'S EXHIBITS: NIL
