Kerala High Court
Padmanabhan vs Karthu on 1 August, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
O.P.(C) NO. 565 OF 2016
AGAINST THE ORDER DATED 04.01.2016 IN I.A.NO.781 OF 2013
IN OS NO.9 OF 1999 OF THE MUNSIFF COURT,ALUVA
PETITIONER/RESPONDENT/PLAINTIFF:
PADMANABHAN
AGED 53 YEARS
S/O.AYYAPPAN, MICHAMBOOMI COLONY, CHOONDY,
ALUVA, ERNAKULAM DISTRICT.
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
RESPONDENTS/PETITIONERS AND DEFENDANTS:
1 KARTHU
AGED 67 YEARS
W/O.AYYAPPAN, MULLAPPILLYTHADAM, CHEMBARAKKI
KARA, KUNNATHNAD TALUK - 686 670.
2 RUGMINI
AGED 65 YEARS
W/O.MOOTHAKURUMBAN, KUZHIKKATTUMALIYIL,
CHALAKKAL KARA, ALUVA EAST VILLAGE, ERNAKULAM
DISTRICT - 683 101.
3 SARASU
AGED 63 YEARS
W/O.AYAPPANKUTTY, CHAKKANKULANGARA CHOONDI,
ERNUMATHALA KARA, ALUVA EAST VILLAGE, ERNAKULAM
DISTRICT - 683 101.
2
O.P.(C) No.565 of 2016
4 BHAVANI
AGED 53 YEARS
W/O.STANLY, CHAKKANKULANGARA CHOONDI,
ERNUMATHALA KARA, ALUVA EAST VILLAGE, ERNAKULAM
DISTRICT - 683 101.
5 PARAMU
AGED 60 YEARS
S/O.AYYAPPAN, CHAKKANKULANGARA CHOONDI,
ERNUMATHALA KARA, ALUVA EAST VILLAGE, ERNAKULAM
DISTRICT - 683 101.
BY ADVS.
SRI.B.JAYASANKAR
SRI.K.SREESAKUMAR
THIS OP (CIVIL) HAVING COME UP FOR FINAL HEARING ON
29.07.2024, THE COURT ON 01.08.2024 DELIVERED THE
FOLLOWING:
3
O.P.(C) No.565 of 2016
P.G. AJITHKUMAR, J.
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O.P.(C) No.565 of 2016
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Dated this the 1st day of August, 2024
JUDGMENT
The petitioner is the plaintiff in O.S.No.9 of 1999 on the
files of the Munsiff's Court, Aluva. The suit is one for declaration
of title and ancillary reliefs. Defendants/respondents filed
I.A.No.781 of 2013 seeking leave to amend their written
statement. The learned Munsiff as per the order dated
04.01.2016 allowed that petition. The said order is under
challenge in this original petition filed under Article 227 of the
Constitution of India.
2. Heard the learned counsel for the petitioner and
the learned counsel for the respondents.
3. In paragraph Nos. 3 and 5 of the written statement
filed by the respondents survey number of the property over
which they claim right is mentioned as 13/60. They wanted it
to be corrected as 13/49, for which they filed the petition
seeking leave to amend. Their contention is that by mistake
wrong survey number was mentioned in the written
statement.
4. The petitioner opposed the petition. He contended
that in the earlier suit, O.S.No.665 of 1997, the respondents
sought a similar correction, after passing of the preliminary
decree for partition, but that was not allowed. Although they
approached this Court, they could not succeed. This Court
also repelled their plea for correction as per judgment dated
16.03.2010 in W.P.(C) No.33515 of 2008 (Ext.P4). Their
further contention was that the petition for leave to amend
was filed highly belatedly and no reason for the delay was
mentioned.
5. The petition seeking leave to amend the written
statement was filed only in 2013. The suit was instituted as
early as in 1999. Since the trial in the suit was not
commenced, there is no bar for seeking leave to amend
written statement. The trial court held that such a
correction could be allowed so as to avoid multiplicity of
proceedings. In order to compensate the inconvenience
caused to the petitioner on account of the delay, costs was
ordered also.
6. The Apex Court in Brahma Nand v. Mathra Puri
[AIR 1965 SC 1506] held that in a suit for declaration of
title the plaintiff has to succeed or fail on the title that he
establishes and if he cannot succeed to prove his title, his suit
must fail notwithstanding that the defendant has no title to
the property. In other words, plaintiff has to succeed or fail on
the title he establishes and the plaintiff cannot succeed by
saying that the defendant has no title to the property.
7. Therefore, the correction of survey number in the
written statement by itself would not cause any prejudice to
the petitioner. Of course, in O.S.No.665 of 1997, the
respondents could not get the survey number corrected as
they now seek. That is not a reason to refuse leave to amend.
In the circumstances, I concur with the view taken by the trial
court that the amendment is required to resolve the real
question in controversy in the suit. The submission of the
learned counsel for the petitioner that in the light of the
amendment, the petitioner/plaintiff should be given an
opportunity to submit additional pleadings has substance.
Therefore, the petitioner shall be allowed by the trial court to
submit a better statement as allowed under Rule 9 of Order
VIII of the Code of Civil Procedure, 1908.
The original petition lacks merits. It is dismissed with the
aforesaid observations.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
APPENDIX OF OP(C) 565/2016
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED
24.11.1998 IN OS 665/97 ON THE FILE
MUNSIFF COURT, ALUVA
EXHIBIT P2 TRUE COPY OF THE ORDER OF THE MUNSIFF
COURT ALUVA IJ IA 577 OF 2001 IN OS
665/1997 DATED 5.11.2001
EXHIBIT P3 TRUE COPY FO THE JUDGMENT IN CRP
NO.536/2002 DATED 7.1.205
EXHIBIT P4 TRUE COPDY OF THE JUDGMET IN WRIT
PETITION 33515/2008 DATED 16.3.2010
EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT AND PETITON
FILED IN SUPPORT OF IA 781/2013 IN OS
9.1999 DATED 11.6.2013 ON THE FILE
MUNSIFF COURT, ALUVA
EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY
THEPLANITIFF IN IA NO.581/2013 IN OS
EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE
MUSNFIF COURT , ALUVA DATED 4.1.2016
