Shiju vs Pushpam
2023 Latest Caselaw 7665 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE P.SOMARAJAN
          FRIDAY, THE 14th DAY OF JULY 2023 / 23RD ASHADHA, 1945
                          OP(C) NO. 388 OF 2014
         OS No. 30/2011 OF PRINCIPAL MUNSIFF COURT, NEYYATTINKARA
PETITIONER :

             SHIJU, S/o AISAYYA, RESIDING AT LATHA BHAVAN,
             AYIRA DESOM, VETTUVILA DESOM, KARODE VILLAGE

             BY ADVS. SRI.V.G.ARUN
                      SMT.INDULEKHA JOSEPH
                      SRI.NEERAJ NARAYAN


RESPONDENTS:

     1       PUSHPAM, AGED 52 YEARS, W/o RASSALAN,
             VETTUVILA PLANKALA VEEDU, AYIRA DESOM,
             KARODE VILLAGE, NEYYATTINKARA TALUK,
             THIRUVANANTHAPURAM DISTRICT - 695 001

     2       NANU @ CHELLANKKANNU, AGED 50 YEARS,
             VETTUVILA PLANKALA VEEDU, AYIRA DESOM,
             KARODE VILLAGE, NEYYATTINKARA TALUK,
             THIRUVANANTHAPURAM DISTRICT - 695 001

     3       MANOHARAN, AGED 53 YEARS,
             VETTUVILA PLANKALA VEEDU, AYIRA DESOM,
             KARODE VILLAGE, NEYYATTINKARA TALUK,
             THIRUVANANTHAPURAM DISTRICT - 695 001

     4       CHOTHI, AGED 48 YEARS,
             VETTUVILA PLANKALA VEEDU, AYIRA DESOM,
             KARODE VILLAGE, NEYYATTINKARA TALUK,
             THIRUVANANTHAPURAM DISTRICT - 695 001

     5       SELVARAJ, S/o SELVAMANI,
             VETTUVILA PLANKALA VEEDU, AYIRA DESOM,
             KARODE VILLAGE, NEYYATTINKARA TALUK,
             THIRUVANANTHAPURAM DISTRICT - 695 001
 OP(C) No.388 of 2014               2



      6       RASWSALAM, S/o SELVAMANI,
              VETTUVILA PLANKALA VEEDU, AYIRA DESOM,
              KARODE VILLAGE, NEYYATTINKARA TALUK,
              THIRUVANANTHAPURAM DISTRICT 695 001

      7       RAJKUMAR, S/o SELVAMANI,
              VETTUVILA PLANKALA VEEDU, AYIRA DESOM,
              KARODE VILLAGE, NEYYATTINKARA TALUK,
              THIRUVANANTHAPURAM DISTRICT 695 001

      8       SUNDAR RAJ, S/o SELVAMANI,
              VETTUVILA PLANKALA VEEDU, AYIRA DESOM,
              KARODE VILLAGE, NEYYATTINKARA TALUK,
              THIRUVANANTHAPURAM DISTRICT 695 001

      9       MECY, D/o SELVAMANI,
              VETTUVILA PLANKALA VEEDU, AYIRA DESOM,
              KARODE VILLAGE, NEYYATTINKARA TALUK,
              THIRUVANANTHAPURAM DISTRICT 695 001

              BY ADVS. SRI.V.SUNIL KUMAR




      THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 14.07.2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) No.388 of 2014                       3




                                     JUDGMENT

It is submitted across the Bar that the fifth

respondent alone is contesting in the trial stage. The

other defendants, who are respondents 1 to 4 and 7 to 9,

remained ex parte in the trial court. Hence, notice to the

said respondents is dispensed with, since the matter is of

the year 2014.

2. The plaintiff came up with a suit for injunction

simplicitor presumably based on a deed of transfer of the

year 2010 executed by a registered assignee from the

original owner, one Selvamani, under a sale deed. The

defendants are the natural legal heirs of the deceased

Selvamani. They denied and disputed the due execution of

the sale deed in favour of the earlier assignee Janamma

under Selvamani as well as the sale deed executed by

Janamma in favour of the plaintiff. Hence, for fair

determination of the issue involved, an amendment

application was submitted for incorporating the prayer for

declaration of title and consequential injunction, besides

recovery of possession, which was dismissed by the trial

court under Ext.P9 order, presumably on the ground of delay

occasioned. It is not permissible to deny the valuable

right to proceed with the suit by incorporating reliefs

which were omitted, unless the same amounts to changing the

very character and nature of the suit. The lower court

ought to have allowed the amendment application though it

is highly belated, for which the court can order cost. That

was not adopted by the trial court, but dismissed the

application which would defeat the very right of the

plaintiff based on the sale deed executed. The cardinal

principle to be followed as well as the equity principles

were not followed by the trial court while dismissing the

said application. Hence, the impugned order will stand set

aside by allowing amendment, which shall be carried out

within 15 days from the next posting date. It is made clear

that the respondents are at liberty to file additional

statement. The court shall also take steps to serve notice

to the respondents before proceeding further in the matter.

It is also made clear that the parties are at liberty to

recall any of the witnesses already examined, if it is

found necessary, and to adduce additional evidence, if any,

required by the parties.

The Original Petition will stand allowed accordingly.

Sd/-

P.SOMARAJAN JUDGE

DMR/-

APPENDIX OF OP(C) 388/2014 PETITIONER'S EXHIBITS

EXHIBIT P1 PHOTOCOPY OF THE SALE DEED DATED 6-10-2010 EXECUTED BY JANAMMA IN FAVOUR OF THE PETITIONER

EXHIBIT P2 PHOTOCOPY OF THE LAND TAX RECEIPT DATED 27-11-2010 ISSUED BY THE KARODE VILLAGE OFFICER

EXHIBIT P3 PHOTOCOPY OF THE POSSESSION CERTIFICATE ISSUED BY THE KARODE VILLAGE OFFICER DATED 7-12-2010

EXHIBIT P4 PHOTOCOPY OF THE PLAINT IN O.S NO 30/2011 OF THE MUNSIFF COURT, NEYYATTINKARA DATED 10-01-2011

EXHIBIT P5 PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE 5TH DEFENDANT IN O.S NO 30/2011 OF THE MUNSIFF COURT, NEYYATTINKARA DATED 19-1-2013

EXHIBIT P6 PHOTOCOPY OF THE I.A NO 714/2014 IN O.S NO 30/2011 OF THE MUNSIFF COURT, NEYYATTINKARA DATED 29-1-2014

EXHIBIT P7 PHOTO COPY OF THE OBJECTION FILED BY THE 5TH DEFENDANT IA NO 714/2014 IN O.S NO 30/2011 OF THE MUNSIFF COURT, NEYYATTINKARA DATED 31-1-2014

EXHIBIT P8 PHOTO COPY OF THE APPLICATION FOR CARBON COPY OF THE ORDER IN IA NO 714/2014 IN O.S NO 30/2011 OF THE MUNSIFF COURT, NEYYATTINKARA

EXHIBIT P9 TYPED COPY OF THE ORDER DATED 4-2-2014 IN IA NO 714/2014 IN O.S NO 30/2011 OF THE MUNSIFF COURT, NEYYATTINKARA

// TRUE COPY //

P.A. TO JUDGE