Shajahan vs Mohandas
2023 Latest Caselaw 10237 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945
                       OP(C) NO. 1963 OF 2023
     AGAINST THE ORDER IN OS 266/2016 OF MUNSIFF COURT, TIRUR


PETITIONER:

          SHAJAHAN, AGED 59 YEARS, S/O.VISARATH KOYA
          VISARATH HOUSE, THANALUR P.O TIRUR TALUK,
          MALAPPURAM, PIN - 676307

          BY ADVS.
          RAHUL SASI
          NEETHU PREM
          P.ARDRA MENON


RESPONDENT:

          MOHANDAS, AGED 52 YEARS
          S/O. THUDISSERI MADHAVAN
          THUDISSERI HOUSE, THANALUR P.O
          TIRUR TALUK, MALAPPURAM, PIN - 676307

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21.09.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OPC 1963/23
                                      2

                            JUDGMENT

The petitioner impugns Ext.P5 order of the Munsiff's Court,

Tirur, on the ground that the amendments allowed by it to the

plaint, on the application of the plaintiff, are illegal and unlawful.

2. Smt.Neethu Prem - learned counsel for the petitioner,

vehemently argued that, through the amendment, the learned Trial

Court has virtually allowed the plaint to carry a completely new

cause of action and relief; and therefore, that the application of the

plaintiff ought to have been rejected. She thus prayed that Ext.P5

be set aside.

3. When I examine Ext.P5, I am afraid that I cannot find

the afore submissions of the learned counsel for the petitioner to be

tenable. This is because, the learned Trial Court has recorded in

the impugned order that the amendment sought by the plaintiff is

to include an alternative relief, to evict the defendant from the

plaint schedule property by way of a mandatory injunction. The

Trial Court has correctly held that the relief sought for is not a

new plea or inconsistent with the earlier stand of the plaintiff, but OPC 1963/23

that it is only an alternative one, which is necessary for

determining the real question of controversy. I also find that the

Trial Court has concluded that the parties ought not be forced to

adjudicate the said issue in a separate suit and that this will not

augur well for the policy of litigation.

4. That being said, as also rightly noticed by the learned

Trial Court, in Shikharchand Jain v. Digamber Jain Praband Karini

Sabha [AIR 1974 (SC) 1178], the Honourable Supreme Court has

held that it is always open to a Court to take notice of events

which happened even after the institution of a suit and to afford

relief as may be necessary. The conditions for doing so are also

enumerated in the said precedent, which has been assessed by the

learned Munsiff.

5. In the afore circumstances and since I cannot find the

amendments sought by the plaintiff to be beyond the ambit of

Order VI Rule 7 of the Code of Civil Procedure, am of the view

that Ext.P5 cannot be entertained.

6. That said, the petitioner certainly will have all remedies

before the Trial Court with respect to the alternative relief now OPC 1963/23

sought for by the plaintiff; for which purpose, all contentions are

left open.

This Original Petition is thus ordered.

Sd/-

RR                                       DEVAN RAMACHANDRAN
                                                JUDGE
 OPC 1963/23


                 APPENDIX OF OP(C) 1963/2023

PETITIONER EXHIBITS
Exhibit P1          A TRUE COPY OF THE PLAINT DATED

25.08.2016 IN O.S NO. 266 OF 2016 ON THE FILES OF THE MUNSIFF COURT, TIRUR Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT DATED 01.08.2023 Exhibit P3 A TRUE COPY OF THE AMENDMENT PETITION I.A. NO. 5 OF 2023 DATED 04.08.2023 IN O.S NO. 266 OF 2016 Exhibit P4 A TRUE COPY OF THE COUNTER DATED 10.08.2023 FILED BY THIS DEFENDANT IN I.A. NO. 5 OF 2023 IN O.S NO. 266 OF 2016 Exhibit P5 A TRUE COPY OF THE ORDER DATED 10.08.2023 IN I.A. NO. 5 OF 2023 IN O.S NO. 266 OF 2016 ON THE FILES OF THE MUNSIFF COURT, TIRUR