Kerala High Court
Baburaj Keloth vs K.Kumari on 1 July, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 1ST DAY OF JULY 2024 / 10TH ASHADHA, 1946
OP(C) NO. 526 OF 2023
AGAINST THE ORDER DATED 27.01.2023 IN IA NO.23/2023 IN OS
NO.8 OF 2013 OF SUB COURT, KANNUR
PETITIONER:
BABURAJ KELOTH
AGED 58 YEARS
S/O.LATE SAKUNTHALA, 'KRISHNALAYAM', CHEROLA,
PERINGALAYI DESOM, KAPPAD PO, KANNUR, PIN - 670006
BY ADVS.
K.MOHANAKANNAN
A.R.PRAVITHA
RESPONDENTS:
1 K.KUMARI,
AGED 74 YEARS
W/O.LATE PANANKAVIL BHARATHAN, PANANKAVIL HOUSE,
KANNUR-11, KUNNOTHUMCHAL WARD, THANA, KANNUR, PIN -
670142
2 PREMAVALLI.K,
AGED 61 YEARS
D/O.LATE P.SAKUNTHALA 'KRISHNALAYAM', CHEROLA AMSOM,
PERINGALAYI DESOM, KAPPAD PO, KANNUR, PIN - 670006
3 RAJARATHNAM,
AGED 58 YEARS
S/O.LATE P.SAKUNTHALA, 'KRISHNALAYAM', CHEROLA AMSOM,
PERINGALAYI DESOM, KAPPAD PO, KANNUR, PIN - 670006
2
O.P(C)No.526 of 2023
4 S.REETHA.K, AGED 54 YEARS
D/O.LATE P.SAKUNTHALA, 'KRISHNALAYAM', CHEROLA AMSOM,
PERINGALAYI DESOM, KAPPAD PO, KANNUR, PIN - 670006
5 NEENA.K,
AGED 48 YEARS
D/O.LATE P.SAKUNTHALA, 'KRISHNALAYAM', CHEROLA AMSOM,
PERINGALAYI DESOM, KAPPAD PO, KANNUR-, PIN - 670006
6 DEEPA.K
AGED 46 YEARS
D/O.LATE P.SAKUNTHALA, 'KRISHNALAYAM', CHEROLA AMSOM,
PERINGALAYI DESOM, KAPPAD PO, KANNUR, PIN - 670006
7 KRISHNA KUMAR. K
AGED 44 YEARS
S/O.LATE P.SAKUNTHALA, 'KRISHNALAYAM', CHEROLA AMSOM,
PERINGALAYI DESOM, KAPPAD PO, KANNUR-, PIN - 670006
8 DIVYA.P,
S/O.LATE BHARATHAN, PROFESSOR, RESIDING AT NELSON,
MANIKKAM ROAD, AMANJIKKARA, CHENNAI, PIN - 670030
BY ADVS.
M.K.SUMOD MUNDACHALIL KOTTIETH FOR R1
PRANOY K. KOTTARAM FOR R2, R3, R4
PRAVEEN H HARIKUMAR FOR R3, R4, R7
ARUN KRISHNA DHAN FOR R8
K.R.AVINASH (KUNNATH) FOR R1
ABDUL RAOOF PALLIPATH FOR R1
VIDYA M.K.
GEORGE MATHEWS
MOHANAN VALIYAPURAYIL
ARJUN SREEDHAR
T.K.SANDEEP
ALEX ABRAHAM
VEENA HARIKUMAR
SWETHA R.
HARIKRISHNAN P.B.
THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 26.06.2024, THE
COURT ON 01.07.2024 DELIVERED THE FOLLOWING:
3
O.P(C)No.526 of 2023
G.GIRISH, J.
---------------
O.P.(C).No.526 of 2023
------------------------------
Dated this the 1st day of July, 2024
--------------------------------------------
JUDGMENT
The 1st defendant in O.S.No.8/2013 of the Sub Court,
Kannur has filed this petition under Article 227 of the
Constitution of India challenging the order dated 27.01.2023
of the said court in I.A.No.23/2023 allowing the amendment
of plaint sought for by the plaintiff.
2. The suit was instituted challenging the power of
attorney dated 17.09.2011 purported to be executed by the
1st plaintiff in favour of the 2nd defendant, and a consequent
gift deed executed by the 2nd defendant in favour of the
1st defendant in respect of the property which belonged to the
1st plaintiff. According to the plaintiffs, the above power of
attorney was fraudulently created by the 2nd defendant and
thus the said document as well as gift deed No.2011/2012
dated 28.05.2012 executed by the 2nd defendant in favour of
the 1st defendant on the strength of the above power of
attorney, are void.
3. However, the relief portion of the plaint was
moulded in such a fashion seeking cancellation of the above
said power of attorney and gift deed as the first part, and
declaration of the above documents as null and void as the
second part. As regards the declaratory portion of the above
relief, there was no valuation and payment of court fee. The
amendment sought for was intended to bifurcate the above
consolidated relief, seeking separate declarations that the
power of attorney dated 17.09.2011 and the gift deed dated
28.05.2012 are null and void, with a consequential request to
cancel those documents. The plaintiff also sought to make
consequential modification in the valuation portion and to
incorporate an additional paragraph explaining the reason for
seeking the above reliefs of declaration and cancellation of
documents.
4. The 1st defendant opposed the amendment
application contending that it would change the nature and
character of the suit and give rise to a fresh cause of action.
It was also contended that the relief sought to be incorporated
by way of amendment is barred by limitation.
5. The learned Sub Judge overruled all the above
objections raised by the 1st defendant and observed in the
impugned order that the proposed amendment would not
change the character and nature of the suit, and that the
plaintiffs are not introducing new facts for getting the relief of
declaration instead of cancellation. Relying on the dictum laid
down by the Apex Court in Life Insurance Corporation of
India v. Sanjeev Builders (P) Ltd. and Another [AIR
2022 SCC 4256], the trial court observed that while dealing
with a prayer for amendment of the pleadings hyper technical
approach has to be avoided. It is upon the above reasoning
that the learned Sub Judge allowed the amendment
application.
6. Heard the learned counsel for the appellant, and the
learned counsel for contesting respondents.
7. There is absolutely no illegality, impropriety or
perversity in the order of trial court, warranting the
intervention of this Court in exercise of the supervisory powers
conferred under Article 227 of the Constitution of India. As
already stated above, the prayer for declaring the impugned
documents as null and void, was already there in the original
plaint. The amendment was intended only to re-align the
above prayer as the first part, and the prayer for cancellation
as the second part, under separate heads, for the power of
attorney and the gift deed challenged by the plaintiffs. The
other changes sought to be made in the valuation portion and
the body of the plaint are purely consequential in nature. It is
not possible to say that the amendment sought to be made in
the above regard would change the basic nature and character
of the suit. Nor could it be said as one made to overcome the
bar of limitation since the relief of declaration was already
there in the original plaint though it was stated as
consequential to the relief of cancellation. Having regard to
the nature of the amendment sought to be made, the delay
which occasioned in the filing of the amendment application
also cannot be considered as a fatal ground to reject the
amendment. Accordingly, I find that there is absolutely no
reason to interfere with the order under challenge.
In the result, the Original Petition stands dismissed with
the following directions to the trial court.
(i) The learned Sub Judge shall afford reasonable
opportunity for the defendants to file additional
written statement if they so preferred, and raise
additional issues, if found necessary.
(ii) Being a suit of the year 2013, every endeavour
shall be made to dispose of the suit as
expeditiously as possible, at any rate, within a
period of six months from the date of receipt of a
copy of this judgment.
(sd/-)
G.GIRISH, JUDGE
jsr
APPENDIX OF OP(C) 526/2023
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT OS 8/2013 ON THE FILE OF THE
SUB COURT, KANNUR
EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS IN OS 8/2013 DATED 13-
3-2015
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN OP(C) 2660/2017 DATED
18-7-2022
EXHIBIT P4 EXHIBIT.P4: TRUE COPY OF THE AFFIDAVIT AND PETITION
IN SUPPORT OF IA 23/23 IN OS 8/2013 OF SUB COURT,
KANNUR
EXHIBIT P5 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER
EXHIBIT P6 TRUE COPY OF THE ORDER IN IA 23/23 IN OS 8/2013
DATED 27-1-2023
