Kerala High Court
K.Jayakumar vs Vilasini on 29 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
OP(C) NO. 548 OF 2024
IN OS NO.228 OF 2009 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL
COURT, NEYYATTINKARA
PETITIONER(S)/PETITIONER/PLAINTIFFS:
1 K.JAYAKUMAR
AGED 57 YEARS, S/O. KARUNAGAKARA PANICKER,
POTTANCHIRA VEEDU, PULIYOORSALA, KUNNATHUKAL VILLAGE,
THIRUVANANTHAPURAM, PIN - 695504.
2 VIJAYAN
AGED 55 YEARS, S/O. KARUNAGAKARA PANICKER, POTTANCHIRA
VEEDU, PULIYOORSALA, KUNNATHUKAL VILLAGE,
THIRUVANANTHAPURAM, PIN - 695504.
BY ADVS.
G.P.SHINOD
GOVIND PADMANAABHAN
AJIT G ANJARLEKAR
ATUL MATHEWS
GAYATHRI S.B.
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
1 VILASINI
AGED 60 YEARS, D/O. KAMALAMMA, KOTTAYIL VEEDU, VELLARADA,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN - 695121
2 SACHITHANANDAN. S
AGED 35 YEARS, S/O. SOMAN PANICKER, KOTTAYIL VEEDU,
VELLARADA, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN
- 695121
3 RAJESWARI
AGED 33 YEARS, D/O. VILASINI, KOTTAYIL VEEDU, VELLARADA,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN - 695121
4 VIMI
AGED 31 YEARS, D/O. VILASINI,KOTTAYIL VEEDU, VELLARADA,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, PIN - 695121
5 NEYYATTINKARA CO-OPERATIVE RURAL DEVELOPMENT BANK LTD.
NO. T. 417 REPRESENTED BY ITS THE SECRETARY
NEYYATTINKARA, THIRUVANANTHAPURAM, PIN - 695121
6 SPECIAL SALES OFFICER
CO-OPERATIVE AGRICULTURAL RURAL DEVELOPMENT BANK LTD. T.
417, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN - 695121
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(C) No.548 of 2024
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J U D G M E N T
Dated, this the 29th day of February, 2024
The petitioners herein are the plaintiffs in the
suit, O.S. No.228/2009, pending before the Sub
Court, Neyyattinkara. Petitioners are aggrieved
by Ext.P5 order, which refused one among the
several amendments sought for by the petitioners/
plaintiffs.
2. Heard the learned counsel for the
petitioners. Having regard to the limited compass
of controversy urged in this matter, notice to
the respondents are dispensed with.
3. The Original relief No.1, sought for is as
follows:-
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"1. To pass a decree declaring that the
defendants are not having any right over the
plaint schedule property and also to declare
that the document no.305 dated 29-2-1980 of
SRO Palukal is not binding on the plaint
schedule properties."
The amended relief sought to be incorporated is
as follows:-
"1. To pass a decree declaring that the
defendants are not entitled to interfere
plaintiffs' right over plaint schedule
property by virtue of sale deed No.305/1980 of
SRO Palukal and all succeeding deeds illegally
created by defendants 1 to 4 thereafter and
those will not bind the plaintiffs' right over
plaint schedule property".
4. Learned Sub Judge found that by virtue of the
amendment, the nature and character of the suit
will change, inasmuch as the petitioners/
plaintiffs are seeking a declaration of their
right over the plaint schedule property in
contra-distinction to the original relief, where
they have sought a negative declaration that the
defendants have no right over the property,
especially under the sale deed in question in the
suit.
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5. Having bestowed my attention to the attendant
facts, I cannot confirm Ext.P5 order. This Court
notice that the subject matter of the suit is
with respect to the validity of document
No.305/1980 of the SRO, Palukal. In the original
plaint, the plaintiffs wanted to declare that the
defendants have not obtained any right over the
plaint schedule property under the said document.
In the amended relief, there is only a cosmetic
change, to the effect that the plaintiffs seek a
declaration that the defendants are not entitled
to interfere with the plaintiffs' right over the
plaint schedule property by virtue of the said
impugned sale deed. In the original plaint, the
plaintiffs have asserted their right over the
plaint schedule property, wherefore, the finding
of the learned Sub Judge that they are seeking a
declaration by virtue of the amended relief in
respect of their rights over the plaint schedule
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property, cannot be sustained. As a matter of
fact, the plaintiffs presume their right over the
plaint schedule property and seek a declaration
to the effect that the defendants have no right
to interfere with such rights of the plaintiffs,
which is asserted in the plaint and which is
averred in the relief portion also, without
claiming any declaration to that effect. The said
amendment can hardly be treated as one which
changes the character and nature of the suit. In
the circumstances, Ext.P5 order cannot be
sustained and the same would stand set aside.
6. There will be a direction to the learned Sub
Judge to allow Ext.P3 application, in so far as
it pertains to the above referred declaration as
well.
7. Taking note of the fact that the suit is of
the year 2009, there will be a direction to the
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learned Sub Judge to try and dispose of the same
expeditiously, at any rate, within a period of
six months from the date of receipt of a copy of
this judgment.
The Original Petition is disposed of, as above.
Sd/-
C.JAYACHANDRAN, JUDGE
Skk
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APPENDIX OF OP(C) NO.548/2024
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PLAINT IN
OS.NO.228/2009 OF SUB COURT,
NEYYATTINKARA DATED 19.09.2009
EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT
FILED BY RESPONDENTS 1 TO 4 IN
OS.NO.228/2009 OF SUB COURT,
NEYYATTINKARA DATED 29.1.2010
EXHIBIT P3 A TRUE COPY OF THE AMENDMENT PETITION
FILED AS IA.NO. 05 OF 2021 IN OS.NO.
228/2009 OF SUB COURT, NEYYATTINKARA
EXHIBIT P4 A TRUE COPY OF OBJECTION IN IA.NO. 05 OF
2021 IN OS.NO. 228/2009 OF THE SUB COURT,
NEYYATTINKARA DATED 24.5.2022
EXHIBIT P5 A TRUE COPY OF ORDER DATED 14.12.2023 IN
IA. 05 OF 2021 IN OS.NO. 228/2009 OF THE
SUB COURT, NEYYATTINKARA
