Kerala High Court
Devi. R vs M.G. Surendran Nair on 30 October, 2024
OP(C).No.1208 of 2024 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
OP(C) NO. 1208 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 23.04.2024 IN EP
NO.40 OF 2016 OF ASSISTANT SESSIONS COURT/SUB COURT /
COMMERCIAL COURT, PATHANAMTHITTA ARISING OUT OF THE
ORDER/JUDGMENT DATED 23.04.2024 IN EA NO.113 OF 2024 OF
ASSISTANT SESSIONS COURT/SUB COURT / COMMERCIAL COURT,
PATHANAMTHITTA
PETITIONER/PLAINTIFF:
DEVI. R
AGED 48 YEARS
D/O G. PADMAVATHI AMMA, DEVI MANDIRAM, PANDALAM
P.O., MANGARAM MURI, PANDALAM VILLAGE, ADOOR
TALUK, PATHANAMTHITTA DISTRICT, PIN - 689501
BY ADVS.
KEVIN JAMES
ASWIN V. NAIR
ATHUL M.V.
RESPONDENTS/DEFENDANTS:
1 M.G. SURENDRAN NAIR
AGED 74 YEARS
S/O GOPALA PILLAI, PALLICKAL P.O., MYLOM VILLAGE,
KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN - 691566
2 THRIJITH (DIED)
S/O DEVARAJAN, BHAMA SADANAM, KOLLANPADI, VAKAYAR,
KONNI TALUK, PATHANAMTHITTA DISTRICT., PIN -
689698
3 SATHYABHAMA (DIED)
BHAMA SADANAM, KOLLANPADI, VAKAYAR, KONNI TALUK,
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PATHANAMTHITTA DISTRICT., PIN - 689698
4 BEENA
AGED 55 YEARS
W/O THRIJITH, PUTHIYADATHU HOUSE, KUZHIVELI MURI,
KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN -
689698
5 ATHINJITH
AGED 26 YEARS
S/O THRIJITH, PUTHIYADATHU HOUSE, KUZHIVELI MURI,
KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN -
689698
6 AJINJITH
AGED 26 YEARS
S/O THRIJITH, PUTHIYADATHU HOUSE, KUZHIVELI MURI,
KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN -
689698
BY ADVS.
MURALI MADANTHACODU
GREESHMA M.M.(K/00000163/2023)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
30.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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VIJU ABRAHAM,J
-------------------
OP(C).No.1208 of 2024
-------------------------------
Dated this the 30th day of October, 2024
JUDGMENT
The petitioner has approached this Court
challenging Ext.P6 whereby the application seeking
amendment of the claim petition was dismissed taking
a stand that the proposed amendment seems to be
introducing new facts.
2. The petitioner is the claim petitioner in EP
No.40 of 2016 on the file of the Sub Court,
Pathanamthitta. The 1st respondent herein is the
decree holder and respondents 2 to 6 are the
judgment debtors in the aforesaid execution
petition. The petitioner herein filed EA No.367 of
2022 to vacate the order for proclamation in respect
of a petition schedule property in EP No.40 of 2016
and to make the said property free from any
encumbrance and declaring the right, title and
interest of the petitioner over the petition
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schedule property. While so, an amendment
application was filed seeking amendment of the claim
petition as EA No.22 of 2023, which is produced as
Ext.P3, which was allowed, but in the amendment
application filed by the petitioner some of the
sentences drafted unfortunately got deleted while
taking the print out from the computer in the office
of her counsel. Thereupon, further application
seeking amendment was filed as EA No.113 of 2024, to
which Ext.P5 objection was filed by the respondents.
The Sub Court, Pathanamthitta dismissed the
application for the reason that the said application
is filed at the fag end of the proceedings and the
petitioner is introducing new facts.
3. The learned counsel for the petitioner submits
that the reason stated by the court rejecting the
application cannot be sustained. Learned counsel
for the petitioner submits that all throughout in
the claim petition, the case of the petitioner is
that sale deed No.605 of 2005 is a sham document not
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intended to be acted upon. In the present amendment
what is sought to be amended is only a reiteration
of the said fact which was the case of the
petitioner all throughout in the claim petition.
4. The learned counsel appearing for the
respondents would submit that there is no amendment
is required at all.
5. Taking into consideration the facts and
circumstances of the case, I am of the view that the
stand taken by the court that new facts is sought to
be introduced by the amendment cannot be sustained.
Further it is to be noted that valid reason has been
stated by the petitioner, which necessitated filing
of the amendment application.
6. In view of the above, I am inclined to
interfere with Ext.P6. Therefore, Ext.P6 is set
aside with a consequential direction to reconsider
EA No.367 of 2022 in EP No.40 of 2016 and pass fresh
orders in this regard, allowing the amendment sought
for by the petitioner. The execution court shall
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expedite the hearing of EA No.367 of 2022 pending
before the Sub Court, Pathanamthitta and finalise
the proceedings without much delay, preferably
within an outer limit of three months from the date
of receipt of a copy of this judgment.
Accordingly, the original petition is disposed of.
sd/-
VIJU ABRAHAM,JUDGE
pm
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APPENDIX OF OP(C) 1208/2024
PETITIONER'S EXHIBITS
Exhibit P1 THE TRUE COPY OF E.A. NO. 367/2022 IN
E.P. NO. 40/2016 OF SUB COURT,
PATHANAMTHITTA
Exhibit P2 THE TRUE COPY OF E.P. NO. 40/2016 OF SUB
COURT, PATHANAMTHITTA
Exhibit P3 THE TRUE COPY OF THE AMENDED CLAIM
PETITION
Exhibit P4 THE TRUE COPY OF E.A. NO. 113/2024 IN
E.P. NO. 40/2016 OF SUB COURT,
PATHANAMTHITTA
Exhibit P5 THE TRUE COPY OF THE OBJECTION FILED BY
THE RESPONDENTS IN E.A. NO. 113/2024 IN
E.P. NO. 40/2016 OF SUB COURT,
PATHANAMTHITTA
Exhibit P6 THE CERTIFIED COPY OF THE ORDER DATED
12/04/2024 IN E.A. NO. 113/2024 IN E.P.
NO. 40/2016 OF SUB COURT, PATHANAMTHITTA
