Kerala High Court
Mytheen Beevi Jameela Beevi vs Miravu Rawther Abdul Majeed on 26 September, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 26TH DAY OF SEPTEMBER 2024 / 4TH ASWINA, 1946
OP(C) NO. 767 OF 2018
AGAINST THE ORDER/JUDGMENT DATED 10.01.2018 IN OS
NO.162 OF 1982 OF MUNSIFF COURT, PUNALUR
PETITIONERS:
1 MYTHEEN BEEVI JAMEELA BEEVI,PUTHEN PARAMBIL VEEDU,
NADUKKUNU MURI,PATHANAPURAM
2 MYTHEEN PICHA RAWTHER UTHUMAN KANNU
PEZHUVILA VEEDU, NADUKKUNNU MURI.
3 APPAKANNU RAWTHER MEERA SAHIB
ANSAR MANZIL, KARIMPALOOR, PIRAVANTHOOR MURI.
4 BEEVI AMMA,MANIKANTANCHIRA VEEDU FROM ETTIVILA
VEEDU,KUNDAYAM MURI, PATHANAPURAM VILLAGE. PIN-689
695
5 SHAHUL HAMEED ABUBACKER
MANIKANTANCHIRA VEEDU FROM ETTIVILA VEEDU,
6 SHAHUL HAMEED ASHARAF
MANIKANTANCHIRA VEEDU FROM ETTIVILA VEEDU,
7 BEEVI AMMA NEBEESA
MANIKANTANCHIRA VEEDU FROM ETTIVILA VEEDU,
8 SHAHUL HAMEED,KANIYANPARAMBIL, KAITHAKKODE
MURI,ARACKAL VILLAGE.
9 SHAHUL HAMEED MUHAMMED HANEEFA,AGED 49 YEARS
RESEENA MANZIL, KADACKAMON MURI, PUNALUR
10 NAZAR MEERAN RAWTHER MUHAMMED HANEEFA
S/O.MEERAN RAWTHER AGED 56, SHFEEK BHAVAN,KUNDAYAM
MURI, PATHANAPURAM VILLAGE.
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11 MUHAMMED HANEEFA SHAFEEK,
S/O.MUHAMMED HANEEFA, SHAFEEK BHAVAN,KUNDAYAM
MURI, PATHANAPURAM VILLAGE.
12 TAJ BEEVI SHABEENA D/O.MUHAMMED HANEEFA AGED 28
YEARS,AGED 46 YEARS
SHAFEEK BHAVANM KUNDAYAM MURI, PATHANAPURAM
VILLAGE.
13 S. NOUSHAD S/O.P.S.SALIM KUNJU AGED 45 YEARS
AGED 47 YEARS,PUTHUPARAMBIL VEEDU, NADAKKUNNU
MURI, PATHANAPURAM VILLAGE.
14 S.MUHAMMED SHAH,S/O.P.S.SALIM KUNJU, AGED 30
YEARS,PUTHUPARAMBIL VEEDU, NADAKKUNNU MURI,
PATHANAPURAM VILLAGE.
15 S.ABDUL SALIM,S/O.P.S.SALIM KUNJU, AGED 30
YEARS,PUTHUPARAMBIL VEEDU, NADAKKUNNU MURI,
PATHANAPURAM VILLAGE.
16 S.NISHA SHEIKH,D/O.P.S.SALIM KUNJU, AGED 30
YEARS,PUTHUPARAMBIL VEEDU, NADAKKUNNU MURI,
PATHANAPURAM VILLAGE.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
RESPONDENTS:
MIRAVU RAWTHER ABDUL MAJEED
VENGAVILA PURAYIDOM, NADAKKUNNU MURI,PATHANAPURAM
VILLAGE, PIN-689 645
BY ADVS.
SRI.GIGIMON ISSAC
SRI.A.K.JAYAPRAKASH
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
26.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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VIJU ABRAHAM,J
-------------------
OP(C).No.767 of 2018
-------------------------------
Dated this the 26th day of September, 2024
JUDGMENT
The above original petition is filed
challenging Ext P7 order in I.A. No. 1775 of 2017
in O.S. No. 162 of 82 on the file of the Munsiff
Court Punalur whereby the application seeking
amendment of the plaint was allowed.
2. Petitioners are the defendants in O.S. No.
162 of 82 on the file of the Munsiff Court Punalur,
a suit for declaration of title and recovery of
possession. The Trial Court decreed the suit which
was confirmed in appeal. But this Court in S.A.
No. 157 of 2002 set aside the said judgment and
decree and remitted back the same for
reconsideration, finding that the matter in dispute
requires reconsideration by the Trial Court in the
light of Mohammedan Law and the parties were
permitted to amend the pleadings and reliefs and
also to adduce fresh evidence. After the remand,
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the plaintiff filed I.A. No. 1775 of 2017 in O.S.
No. 162 of 82 seeking to amend the plaint. Ext.P6
objection was filed mainly contending that by the
proposed amendment attempt is now made to introduce
a new cause of action and the same will change the
nature of the suit and the same is not in
consonance with the observation made by this Court
in S.A. No. 157 of 2002. But the said amendment was
allowed as per Ext.P7 order which is challenged in
this original petition.
3. It is the contention of the learned counsel
for the petitioners that none of the objections
raised in Ext.P6 was considered or even discussed
in Ext.P7 order. It is also contended that the
Trial Court has not applied its mind and even
without specifying whether the amendment will take
effect from the date of petition or from the date
of suit, allowed the application solely relying on
the direction issued by this Court in Ext.P4
judgment. It is further contended that the specific
finding in Ext.P4 judgment that in view of Clause
63 of Mohammedan Law, defendants 1 and 3 to 5 are
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co-owners of the property as per devolution, and
the suit for recovery cannot be allowed and at the
most Shahul Hameed and Sainudeen can claim
partition and separate possession of the property
and also that the plaintiff cannot claim anything
more than what was due to Shahul Hameed and
Sainudeen, was not considered by the Trial Court
while issuing Ext.P7 order. By the amendment, a
totally new case has been pleaded and thus totally
changed the nature and character of the suit and
resulted in introduction of a new cause of action
which is barred by limitation.
4. Learned Counsel appearing for the respondents
submits that this Court, by Ext.P4 judgment, has
permitted the parties to amend the pleadings and
reliefs and adduce fresh evidence and it is based
on the same that Ext P7 order was issued and
therefore, the order does not call for any
interference by this Court.
5. I have considered the rival contentions of
both sides.
6. Ext.P6 is the objection raised by the
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petitioner to Ext.P5 petition seeking amendment
contending that a new cause of action has been
raised which is barred by limitation and the
amendment will change the nature and cause of
action of the suit and the same is not permissible.
It is also contended that the amendment is not in
tune with the spirit and observations made by this
Court in Ext.P4 judgment. A perusal of Ext.P7
order would reveal that none of the objections
raised in Ext.P6 was considered or seen reflected
in the order and the amendment was allowed
essentially stating that this Court has in Ext.P4
observed that the parties are at liberty to amend
the pleading and held that in view of the said
observation of this Court, the contention raised by
the respondents therein cannot be entertained.
Though various contentions were raised by the
petitioners in Ext P6 objection including that the
cause of action now raised is barred by limitation
and that the amendment will change the nature and
character of the suit, none of these contentions
were dealt with while issuing Ext.P7 order. The
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only reason stated for not entertaining the
contentions in Ext.P6 objection is the liberty
granted by this Court in Ext.P4 judgment to amend
the pleadings. Only for the reason that this Court
by Ext.P4 granted liberty to amend the pleading, it
cannot be said that the objection raised in Ext.P6
cannot be entertained. Application for amendment
has to be considered on merits after considering
the objections raised in Ext.P6 and the Trial Court
is bound to issue a reasoned order. Having not done
so while issuing Ext.P7 order, the same is liable
to be interfered with.
Accordingly, Ext.P7 is set aside with a
consequential direction to reconsider Ext.P5
application seeking amendment after considering the
objection raised in Ext.P6 and pass a reasoned
order, within a period of 2 months from the date of
receipt of a copy of this judgment.
Sd/-
VIJU ABRAHAM,
JUDGE
pm
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APPENDIX OF OP(C) 767/2018
PETITIONERS' EXHIBITS
EXHIBIT P1 TRUE COPY OF SUIT AS O.S.NO.162 OF 1982
OF THE MUNSIFF'S COURT, PUNALUR
EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT FILED BY
THE DEFENDANTS 1 AND 2 IN O.S.NO.162 OF
1982 BEFORE THE MUNSIFF'S COURT,
PUNALUR.
EXHIBIT P3 TRUE COPY OF WRITTEN STATEMENT FILED BY
THE DEFENDANTS 3 TO 5 IN O.S.NO.162 OF
1982 BEFORE THE MUNSIFF'S COURT,
PUNALUR.
EXHIBIT P4 TRUE COPY OF JUDGMENT DATED 20.12.2016
IN S.A.NO.157 OF 2002 OF THIS HON'BLE
COURT.
EXHIBIT P5 TRUE COPY OF I.A.NO.1775 OF 2017 IN
O.S.NO.162 OF 1982 FILED BEFORE THE
MUNSIFF'S COURT, PUNALUR.
EXHIBIT P6 TRUE COPY OF COUNTER AFFIDAVIT TO
EXHIBIT.P5 DATED 09.11.2017.
EXHIBIT P7 TRUE COPY OF ORDER DATED 10.01.2018 IN
I.A.NO.1775 OF 2017 IN O.S.NO.162 OF
1982 OF THE MUNSIFF'S COURT, PUNALUR.
