M/S.Das Traders vs M/S.Power King Betteries
2023 Latest Caselaw 6032 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MRS. JUSTICE MARY JOSEPH
   FRIDAY, THE 9TH DAY OF JUNE 2023 / 19TH JYAISHTA, 1945
                    OP(C) NO. 326 OF 2018
IN I.A NO.685/2017 IN O.S NO.238/2012 OF SUB COURT, CHERTHALA


PETITIONER/COUNTER PETITIONER/PLAINTIFF:

          M/S.DAS TRADERS,
          CHERTHALA, REPRESENTED BY ITS PROPRIETRIX SHEELA
          DAS, AGED 57 YEARS, W/O.UDANA DAS,VAIMPARAMBIL,
          CHERTHALA SOUTH MURI,
          CHERTHALA SOUTH VILLAGE,ALAPPUZHA-688 539.

          BY ADVS.
              SRI.G.P.SHINOD
              SHRI.AJIT G ANJARLEKAR
              SRI.GOVIND PADMANAABHAN
              SRI.RAM MOHAN.G.


RESPONDENT/PETITIONER/DEFENDANTS:

          M/S.POWER KING BETTERIES,
          KUMBANAD,
          REPRESENTED BY ITS PROPRIETOR BABU,
          AGED 55 YEARS,
          KTTIYIL VEEDU,MUTTUMON(PO),
          PATHANAMTHITTA-689 547.



     THIS OP (CIVIL) HAVING COME UP FOR FINAL HEARING ON
21.10.2022, THE COURT ON 09.06.2023, DELIVERED THE FOLLOWING:
 O.P.(Civil) No.326 of      2018

                                       2



                             JUDGMENT

Dated this the 9th day of June, 2023

Respondent in I.A.No.685/2017 in O.S.No.238/2012, on

the files of Subordinate Judge's Court, Cherthala has approached

this Court in the Original Petition on hand as the petitioner. He is

the plaintiff in O.S.No.238/2012 seeking realisation of money

due against purchase of materials borne out from the accounts

maintained by the petitioner in the regular course of business.

The respondent/defendant filed written statement in the suit

denying the transaction averred in the plaint in toto. The trial

court decreed the suit by judgment dated 07.03.2015.

Challenging that judgment appeal was filed by the defendant in

the suit before District Court, Alappuzha as A.S.No.77 of 2015.

For the reason that the documents marked in evidence as Exts.A1 to

A32 do not incorporate a certificate as contemplated under

Section 65B of the Evidence Act, the appeal was allowed and the

Original Suit was remanded to the trial court by judgment

passed on 26.09.2017 for enabling the parties to prove their

contentions with reference to the documents produced, in O.P.(Civil) No.326 of 2018

conformity with Section 65B Evidence Act. After the remand,

the respondent/defendant filed I.A.No.685/2017 seeking leave

to file additional pleadings to the effect that the seal subscribed

by the respondent acknowledging the statement of accounts of

the petitioner was fabricated by the petitioner. For the reason

that the additional plea which the respondent seeks to

incorporate would have the impact of the respondent

withdrawing the admission originally made by him in the written

statement, the court below allowed the application by order

passed on 15.01.2018. For the reason that the Order is

manifestly and apparently erroneous and has resulted in

miscarriage of justice, the Original Petition (Civil) is filed.

2. True copies of the plaint in O.S.No.238/2012, written

statement filed by the defendant in the above suit, judgment

dated 26.09.2017 passed by District Court, Alappuzha in

A.S.No.77/2015, I.A.No.685/2017, counter affidavit filed in

I.A.No.685/2017, I.A.No.686/2017 and objection filed in

I.A.No.686/2017 and the order now under challenge were

produced alongwith the petition on hand as Exts.P1 to P8. The

impugned order is sought to be reversed in exercise of the O.P.(Civil) No.326 of 2018

supervisory jurisdiction of this Court under Article 227 of the

Constitution of India.

3. Sri.Govind Padmanabhan, the learned counsel for the

Original Petitioner urged that the court below has exceeded the

jurisdiction directed by the Appellate Court to be exercised by it,

by the order of remand passed by it. According to him, actually

leave was sought to file additional pleadings by filing

I.A.No.685/2017 and it was not filed under Order VI Rule 17 of

the Code of Civil Procedure, 1908 (for short 'the CPC'), seeking

to amend the plaint. According to him the scope of Order VIII

Rule 9 CPC was misread and misconstrued by the court below.

According to him, the court below has overlooked the factum in

reality that the reliefs sought in Exts.P4 and P6 petitions are

beyond the scope of the direction to remand the Suit, by

judgment passed by appellate court marked alongwith the

petition on hand as Ext.P3. According to him the limited

purpose underlying Ext.P3 was to enable the parties to the suit

to prove their respective contentions with regard to the

documents produced, in conformity with Section 65B Evidence

Act. The court below failed to appreciate the factum that the O.P.(Civil) No.326 of 2018

pleadings proposed, if brought in, would have the impact of

withdrawal of admission already made by the plaintiff, after the

trial. It was contended that the court below ought to have

dismissed Exts.P4 and P6 petitions. Thus the order under

challenge was sought to be set aside and Ext.P4 petition,

dismissed.

4. Notice before admission was ordered in the case

initially and all further proceedings in O.S. No.238/2012 was

stayed on 14.02.2018 and it was in force for a period of two

weeks. Thereafter by successive orders the above interim order

was also extended from time to time.

5. True copy of the interlocutory application, where the

impugned order was passed, is Ext.P4. The application was

found filed under Order VIII Rule 9 read with Section 151 C.P.C

and the prayer raised was to grant leave to the defendant to file

subsequent pleadings in the above case. In the affidavit of the

petitioner accompanying the I.A., it was averred as follows :

" 2. I have filed certain additional pleadings in the above case, after the remand by the Honourable District Court. The subsequent pleadings are very much essential to have a just adjudication of the above case.

O.P.(Civil) No.326 of 2018

3. Even though I have denied the averments in paragraph 5 of the plaint, for clarity I have filed the subsequent pleading and it may kindly be accepted. Leave may also be granted for that."

6. It is found stated in paragraph 17 of Ext.P3 as

follows:

"In fact, there was failure on the part of the plaintiff to file application to reopen the case for getting the proper computer print outs with the certificate attached to it also admitted in evidence. Such attempt was not made by the plaintiff. However, considering the fact that the plaintiff is claiming huge sum of money from the defendant, I hold the view that straight away non suiting the plaintiff for the non compliance with Sec.65B of the Evidence Act may not appear to be a proper course. If so, I am of the considered opinion that the case requires to be remanded to the trial court, so that the plaintiff can adduce proper evidence with respect to the documents in consonance with the mandatory requirements of law. The defendant also will get another opportunity to adduce rebuttal evidence, if required."

7. Sl.No.2 of the decretal part is extracted hereunder :

"(2) The learned Sub Judge shall afford opportunities to the plaintiff and the defendant to adduce further and better evidence to prove their respective contentions and the plaintiff may also be granted an opportunity to prove the documents in conformity to Sec.65B of the Evidence Act".

O.P.(Civil) No.326 of 2018

8. Therefore, as per the relevant part of the

judgment extracted above, the parties to the suit are not

directed to add subsequent pleadings in the plaint as well as

in the written statement, but only to adduce reliable and

better evidence based on the pleadings already taken by

them and available in the plaint as well as in the written

statement filed in the suit. Therefore, the court below is

directed by the judgment to afford opportunities to the

plaintiff and the defendant to adduce further and better

evidence to prove their respective contentions and to the

plaintiff to prove the documents already on record in

conformity to Section 65B of the Evidence Act. Therefore,

the parties to O.S No.238/2012 are directed to adduce

further and better evidence.

9. In the counter affidavit filed in I.A No.685/2017,

copy of which is produced alongwith the Original Petition on

hand as Ext.P5, it was contended that the appeal was O.P.(Civil) No.326 of 2018

remanded for a purpose specifically and precisely

mentioned in Ext.P3.

10. O.S No.238/2012 stands dismissed by judgment

of Sub Court, Cherthala for the reason that the copies of

Ext.A1 to A32 though admitted in evidence, the certificate

claimed to be issued under Section 65B Evidence Act having

not been attached alongwith at the time of adducing

evidence, were not considered by the court below.

Therefore, the claim of the plaintiff in the suit being for

realisation of huge sum of money form the defendant, so as

to enable the plaintiff to adduce appropriate evidence to

treat Exts.A1 to A32 relevant and admissible in consonance

with the mandatory requirements of law and also to enable

the defendant to adduce rebuttal evidence if required, that

the judgment under challenge in the appeal was set aside

and the original suit was remanded to the court below.

11. Therefore, incorporation of additional pleadings

was not meant by Ext.P3, but it only permits the parties to

adduce proper and reliable evidence based on the pleadings O.P.(Civil) No.326 of 2018

already on record. The scope of remand of the Original Suit

being only to the extent specified above, the court below is

highly unjustified in allowing I.A No.685/2017 and granting

leave to the defendant to incorporate additional pleadings in

the written statement filed by him.

12. The prayer in I.A No.685/2017 seeking leave to

incorporate additional pleadings was stoutly opposed by the

plaintiffs, but, discarding the objection raised, the court

below granted leave to the defendant to raise additional

pleadings. The reasoning of the court below for granting

leave, contained in paragraph 4 of the impugned order is

extracted hereunder:-

"4. On perusal of the pleading it is clear that the above mentioned statement of account has been produced along with the suit and the same form part of the pleading. Though there is denial it is clear that there is no specific denial. According to petitioner he is to be permitted to deny the same specifically. Learned counsel for the respondent would contend that if the petition is allowed the petitioner/defendant is permitted to deny the same that will amount to withdrawal of admission made in the written statement. According to learned counsel for respondent there is no direction by the appellate court to allow this amendment.

O.P.(Civil) No.326 of 2018

But it is also to be noted that nothing has been stated to the effect that amendment shall not be allowed. At this juncture, if amendment is necessary for the disposal of the case this court can consider the same and if necessary can allow the same. It is always better to allow the parties to make all their case in the pleading specifically. So in the interest of justice, I am inclined to allow the petition. Whether by allowing the amendment the petitioner is permitted to withdraw the admission made in the written statement etc, can be considered after trial of the suit. It is settled principle that amendment application is to be considered liberally. Hence in the interest of justice, petition is allowed and it is made clear that amendment will not relate back to the date of institution of the suit and right of the respondent/plaintiff to contend that petitioner is withdrawing an admission is left open. It is to be noted that the petition is filed in a belated stage after commencement of trial. Hence I of the view that respondent/plaintiff is to be compensated."

13. It is found from the above extract that the court

below had misconceived the purpose behind the filing of I.A

No.685/2017 as amendment of the written statement. The

application infact was filed under Order VIII Rule 9 CPC and

not under Order VI Rule 17 CPC. Moreover, the direction

in the order of remand is a specific one confined only to

adduce additional evidence by both parties on the basis

of the pleadings already on record.

O.P.(Civil) No.326 of 2018

14. The direction being specific and unambiguous, the

court below ought not to have granted leave to the

respondent to raise additional pleadings in defence. The

court below undoubtedly is unjustified in granting the leave

sought and the impugned order is liable to be set aside.

In the result, O.P (Civil) is allowed. The impugned

order is set aside. Consequently, I.A No.685/2017 is

dismissed.

Sd/-

                                        MARY JOSEPH
                                            JUDGE
 MJL/JJ
 O.P.(Civil) No.326 of    2018



                 APPENDIX OF OP(C) 326/2018

 PETITIONER'S EXHIBITS

 EXHIBIT P1         A TRUE COPY OF THE PLAINT IN O.S.238 OF
                    2012 ON THE FILES OF THE SUBORDINATE
                    JUDGE'S COURT,CHERTHALA

 EXHIBIT P2         A TRUE COPY OF THE WRITTEN STATEMENT
                    FILED BY THE RESPONDENT BEFORE THE

SUBORDINATE JUDGE'S COURT,CHERTHALA IN O.S.NO.238 OF 2012

EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 26.09.2017 PASSED BY THE DISTRICT COURT,ALAPPUZHA IN A.S.NO.77 OF 2015`

EXHIBIT P4 A TRUE COPY OF THE I.A.NO.685 OF 2017 IN O.S.NO.238 OF 2012 FILED BY THE RESPONDENT BEFORE THE SUBORDINATE JUDGE'S COURT, CHERTHALA

EXHIBIT P5 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER BEFORE THE SUBORDINATE JDUGE'S COURT,CHERTHALA IN I.A.N0.685 OF 2017 IN O.S.238 OF 2012

EXHIBIT P6 A TRUE COPY OF THE I.A.NO.686 OF 2017 IN O.S.NO.238 0F 2012 FILED BY THE RESPONDENT BEFORE THE SUBORDINATE JUDGE'S COURT,CHERTHALA

EXHIBIT P7 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.NO.686 OF 2017 IN O.S.NO.238 OF 2012 BEFORE THE SUBORDINATE JUDGE'S COURT,CHERTHALA

EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 15.01.2018 IN I.A.NO.685 OF 2017 IN O.S.NO.238 OF 2012 OF THE SUBORDINATE JUDGE'S COURT,CHERTHALA.