Kerala High Court
Attukal Bhagsavathy Temple Truest vs C. Manikantan Nair on 30 January, 2025
2025:KER:8143
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 30TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946
OP(C) NO. 2099 OF 2018
AGAINST THE ORDER/JUDGMENT DATED IN OS NO.493 OF 2002 OF ASSISTANT
SESSIONS COURT/I ADDITIONAL SUB COURT,THIRUVANANTHAPURAM
PETITIONER:
ATTUKAL BHAGSAVATHY TEMPLE TRUEST
ATTUKAL, MANACAUD P O, THIRUVANANTHAPURAM, PIN- 695009,
REPRESENTED BY ITS SECRETARY, K.SISUPALAN NAIR,
S/O.K.KRISHNAN NAIR, AGED 57 YEARS, ATTUKAL BHAGAVATHY
TEMPLE TRUST, ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM,
PIN- 695009.
BY ADVS.
D.KISHORE
SMT.MINI GOPINATH, CGC
MEERA GOPINATH
R.MURALEEKRISHNAN (MALAKKARA)
RESPONDENTS:
1 C. MANIKANTAN NAIR
AGED 67 YEARS
S/O.CHELLAPPAN PILLAI, RESIDING MUTHUVALLY HOUSE, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM- 695009, PIN - 695009
2 M.PRABHAKARAN NAIR,
AGED 76 YEARS
S/O.MADHAVAN PILLAI, RESIDING AT NEDIGAVILAKAM, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM (DIED), PIN - 695009
*ADDL.R3 SMT. LALITHAMBIKA DEVI K
W/O. LATE M. PRABHAKARAN NAIR, AGED 84 YEARS RESIDING AT TC
22/761(5) , ABHRA-46, NEDIYAVILAKATHU VEEDU, ATTUKAL,
MANACAUD P.O., THIRUVANANTHAPURAM - 695009
*ADDL.R4 SRI.ANIL KUMAR. P
S/O. LATE M. PRABHAKARAN NAIR, AGED 62 YEARS, RESIDING AT
'PRABHATHAM' ABHRA-3, TC 22/315(1), ATTUKAL, MANACAUD P.O.,
THIRUVANANTHAPURAM - 695009
OP(C) Nos. 2099, 2098 & 2101 of 2018 :2:
2025:KER:8143
*ADDL.R5 SRI. AJITHKUMAR P
S/O. LATE M. PRABHAKARAN NAIR, AGED 61 YEARS, RESIDING
IN ABHRA-45, TC 22/761(5) (OLD), NEDIYAVILAKATHU VEEDU,
ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM- 695009
*ADDL.R6 SRI. ARUNKUMAR. P
S/O. LATE M. PRABHAKARAN NAIR AGED 61 YEARS, RESIDING
AT ABHRA-46, TC 22/761(5), NEDIYAVILAKATHU VEEDU,
ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM-695009.
*(ADDL. R3 TO R6 ARE IMPLEADED AS THE LRS OF DECEASED
R2 VIDE ORDER DATED 16.12.2022 IN I.A.1/2022.)
**ADDL.R7 SHAJI MANI
S/O. MANIKANTAN NAIR, RESIDING AT MUTHUVALLY HOUSE,
ATTUKAL, MANACAUD, THIRUVANANTHAPURAM -695009
**ADDL.R8 SHEEJA MANI
D/O. MANIKANTAN NAIR, MUTHUVALLY HOUSE, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM-695009
**(ADDITIONAL R7 AND R8 ARE IMPLEADED AS THE LEGAL
HEIRS OF DECEASED R1 VIDE ORDER DATED 03.10.2024 IN IA
1/2023.)
***ADDL.R9 LILLY MONY
AGED 71 YEARS
W/O. LATE MANIKANTAN NAIR, RESIDING AT MUTHUVALLY
HOUSE, ATTUKAL, MANACAUD, THIRUVANANTHAPURAM -695009
***(IMPLEADED ADDITIONAL RESPONDENT 9 AS THE LEGAL
REPRESENTATIVE OF THE DECEASED R1 VIDE ORDER DATED
30.01.2025 IN IA 2/2024)
BY ADVS.
K.B. PRADEEP
D.KISHORE
D.SAJEEV
LIGEY ANTONY
ABHIRAM B.H.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30.01.2025,
ALONG WITH OP(C)NOS.2101/2018 & 2098/2018, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
OP(C) Nos. 2099, 2098 & 2101 of 2018 :3:
2025:KER:8143
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 30TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946
OP(C) NO. 2101 OF 2018
AGAINST THE ORDER/JUDGMENT DATED IN OS NO.335 OF 2005 OF ASSISTANT
SESSIONS COURT/I ADDITIONAL SUB COURT,THIRUVANANTHAPURAM
PETITIONER:
ATTUKAL BHAGAVATHI TEMPLE TRUST
ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM, PIN 695009,
REPRESENTED BY ITS SECRETARY, K.SISUPALAN NAIR, ATTUKAL
BHAGAVATHY TEMPLE TRUST, ATTUKAL, MANACAUD P.O.,
THIRUVANANTHAPURAM, PIN 695009.
THIRUVANANTHAPURAM, PIN - 695009
BY ADVS.
KISHORE D.
MINI GOPINATH
MEERA GOPINATH
MURALEEKRISHNAN (MALAKKARA) R.
RESPONDENTS:
1 M. PRABHAKARAN NAIR
AGED 76 YEARS
RESIDING AT NEDIGAVILAKAM, ATTUKAL, MANACAUD,
THIRUVANANTHAPURAM-695009.
2 C.MANIKANTAN NAIR
AGED 67 YEARS
RESIDING AT MUTHUVALLY HOUSE, ATTUKAL, MANACAUD,
THIRUVANANTHAPURAM - 695 009.
*ADDL.R3 LALITHAMBIKA DEVI K.
AGED 84 YEARS
W/O. LATE M.PRABHAKARAN NAIR, WS/O. LATE M. PRABHAKARAN
NAIR, RESIDING AT TC 22/761(5), ABHRA-46,
NEDIYAVILAKATHU VEEDU, ATTUKAL, MANACAUD P.O.,
THIRUVANANTHAPURAM -695 009
*ADDL.R4 ANIL KUMAR P.
AGED 62 YEARS
OP(C) Nos. 2099, 2098 & 2101 of 2018 :4:
2025:KER:8143
S/O. LATE M.PRABHAKARAN NAIR, RESIDING AT 'PRABHATHAM'
ABHRA-3, TC 22/315(1), ATTUKAL, MANACAUD P.O.,
THIRUVANANTHAPURAM - 695 009.
*ADDL.R5 AJITH KUMAR P.
AGED 61 YEARS
S/O. LATE M.PRABHAKARAN NAIR, RESIDING IN ABHRA-45, TC
22/761 (5) (OLD), TC/1394 (NEW), NEDIYAVILAKATHU VEEDU,
ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM - 695 009.
*ADDL.R6 ARUN KUMAR P.
AGED 55 YEARS
S/O. LATE M.PRABHAKARAN NAIR, RESIDING AT ABHRA-46, TC
22/761 (5), NEDIYAVILAKATHU VEEDU, ATTUKAL, MANACAUD
P.O., THIRUVANANTHAPURAM- 695 009
*(ADDITIONAL RESPONDENTS 3 TO 6 IMPLEADED AS PER ORDER
DATED 16.12.2022 IN I.A. 1/2022)
**ADDL.R7 SHAJI MANI
S/O. MANIKANTAN NAIR, RESIDING AT MUTHUVALLY HOUSE,
ATTUKAL, MANACAUD, THIRUVANANTHAPURAM - 695 009
**ADDL.R8 SHEEJA MANI
D/O. MANIKANTAN NAIR, MUTHUVALLY HOUSE, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM - 695 009
**(ADDITIONAL RESPONDENTS 7 AND 8 ARE IMPLEADED AS THE
LEGAL HEIRS OF DECEASED 2ND RESPONDENT AS PER ORDER
DATED 03/10/2024 IN IA 1/2023)
***ADDL.R9 LILLY MONY
AGED 71
W/O. LATE MANIKANTAN NAIR, MUTHUVALLY HOUSE, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM 695009
***[ADDITIONAL RESPONDENT NO. 9 IS IMPLEADED AS LEGAL
HEIR OF DECEASED SECOND RESPONDENT AS PER ORDER DATED
30.01.2025 IN IA 2/2024 IN OPC 2101/2018]
BY ADVS.
ABHIRAM B.H.
D.SAJEEV
K.B.PRADEEP
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30.01.2025,
ALONG WITH OP(C) NOS.2099/2018 & 2098/2018, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
OP(C) Nos. 2099, 2098 & 2101 of 2018 :5:
2025:KER:8143
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 30TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946
OP(C) NO. 2098 OF 2018
AGAINST THE ORDER/JUDGMENT DATED IN OS NO.494 OF 2002 OF
ASSISTANT SESSIONS COURT/I ADDITIONAL SUB COURT,THIRUVANANTHAPURAM
PETITIONER:
ATTUKAL BHAGAVATHI TEMPLE TRUST
ATTUKAL, MANACAUD P O, THIRUVANANATHAPURAM REPRESENTED
BY ITS SECRETARY, K SISUPALAN NAIR, S/O.K.KRISHNAN
NAIR, AGED 57 YEARS, ATTUKAL BHAGAVATHY TEMPLE TRUST,
ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM, PIN-
695009., PIN - 695009
BY ADVS.
KISHORE D.
SMT.MINI GOPINATH, CGC
MEERA GOPINATH
MURALEEKRISHNAN (MALAKKARA) R.
RESPONDENTS:
1 C. MANIKANTAN NAIR
AGED 67 YEARS
S/O.CHELLAPPAN PILLAI, RESIDING MUTHUVALLY HOUSE,
ATTUKAL, MANACAUD, THIRUVANANTHAPURAM-695009 (DIED)
2 M.PRABHAKARAN NAIR,
AGED 76 YEARS
AGED 76 YEARS, S/O.MADHAVAN PILLAI, RESIDING AT
NEDIGAVILAKAM ATTUKAL, MANACAUD, THIRUVANANTHAPURAM.
(DIED), PIN - 695009
*ADDL.R3 LALITHAMBIKA DEVI K
AGED 84 YEARS
W/O. LATE M. PRABHAKARAN NAIR, RESIDING AT ABHRA 46, TC
22/761(5), NEDIYAVILAKATHU VEEDU, ATTUKAL, MANACAUD
P.O, THIRUVANANTHAPURAM 695009.
*ADDL.R4 ANIL KUMAR. P
S/O. LATE M. PRABHAKARAN NAIR, AGED 62 YEARS, RESIDING
AT 'PRABHATHAM' ABHRA-3, TC 22/315(1), ATTUKAL,
OP(C) Nos. 2099, 2098 & 2101 of 2018 :6:
2025:KER:8143
MANACAUD P.O., THIRUVANANTHAPURAM
*ADDL.R5 AJITHKUMAR. P.
S/O. LATE PRABHAKARAN NAIR RESIDING AT ABHRA-45, TC
22/761(5) (OLD), TC/1394(NEW) NEDIYAVILAKAM, ATTUKAL,
MANACAUD P.O., THIRUVANANTHAPURAM
*ADDL.R6 ARUNKUMAR P
AGED 55 YEARS
S/O. LATE M. PRABHAKARAN NAIR, RESIDING AT ABHRA 46, TC
22/761(5), NEDIYAVILAKATHU VEEDU, ATTUKAL, MANACAUD
P.O, THIRUVANANTHAPURAM 695009.
*(IMPLEADED AS ADDITIONAL R3 TO R6 VIDE ORDER DATED
16/12/2022 IN IA 1/2022)
**ADDL.R7 SHAJI MANI
S/O. MANIKANTAN NAIR, RESIDING AT MUTHUVALLY HOUSE,
ATTUKAL, MANACAUD, THIRUVANANTHAPURAM
**ADDL.R8 SHEEJA MANI
D/O. MANIKANTAN NAIR, MUTHUVALLY HOUSE, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM .
(ADDITIONAL RESPONDENTS 7 AND 8 ARE IMPLEADED AS THE
LEGAL HEIRS OF RESPONDENT 1 VIDE ORDER DATED 3.10.2024
IN I.A.NO.1/2023)
***ADDL.R LILLY MONY
9 W/O. LATE MANIKANTAN NAIR, MUTHUVALLY HOUSE, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM;
(ADDITIONAL R9 IS IMPLEADED AS THE LEGAL REPRESENTATIVE
OF DECEASED R1 VIDE ORDER DATED 30.01.2025 IN IA
2/2024)
BY ADVS.
K.B.PRADEEP
D.KISHORE
D.SAJEEV
LIGEY ANTONY
ABHIRAM B H B H
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30.01.2025,
ALONG WITH OP(C) NOS.2099/2018 & 2101/2018, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
OP(C) Nos. 2099, 2098 & 2101 of 2018 :7:
2025:KER:8143
VIJU ABRAHAM , J.
===========================
OP(C) Nos. 2099, 2098 & 2101 of 2018
============================
Dated this the 30th day of January, 2025
JUDGMENT
In all these cases the parties are the same and the date of the
order impugned are also similar, therefore they are heard and
disposed of together by a common order.
2. OP(C) No.2098 of 2018 is filed challenging the order in
IA No.2545 of 2017 in OS No.494 of 2002, whereas OP(C) No. 2099
of 2018 is filed challenging the order in IA No.2543 of 2017 in OS
No.493 of 2002, and OP(C) No. 2101 of 2018 is filed challenging the
order in IA No.2544 of 2017 in OS No.335 of 2005 on the file of the
1st Addl. Sub Court, Thiruvananthapuram, whereby the request of
the petitioner for amending the plaint under Order VI Rule 17 CPC
was rejected. All these suits were filed by the petitioner herein for
realization of money on account of loss caused by breach of trust
committed by the defendants/respondents herein while they were
acting as secretary and president of the plaintiff Trust. Petitioner's
application seeking amendment was rejected by the orders
impugned herein, wherein the Court held that the applications are
hit by the proviso to Order VI Rule 17 CPC and are therefore not
allowable. In these original petitions this Court is to consider
2025:KER:8143
whether any interference is called for on the orders issued by the
trial Court wherein it has rejected the request of the petitioner for
amendment of the plaint holding that said applications are hit by
the proviso to Order VI Rule 7 of the CPC.
3. The learned Counsel appearing for the petitioner
submits that the statutory intention of the Order VI Rule 17 CPC
which contemplates that the amendment of pleadings can be
permitted by the Court at any stage of proceedings and the same
was not taken into consideration by the Court while passing the
interim order. It is further contended that the proviso to Order VI
Rule 17 CPC does not bar the Court from allowing the application
for amendment even after the trial has commenced. It is the
contention of the petitioner that the omission to incorporate the
words 'by way of damages' in the plaint was realized only on
12.09.2017 while preparing for the final arguments and that the
amendment is not prejudicial to the respondents, and therefore the
amendment ought to have been allowed by the Court. The learned
Counsel for the petitioner submits that a liberal approach must be
taken by the Court in the matter of amendment and that the
amendments are allowed even at the appellate stage. In support of
the contentions petitioner relies on the judgment in Lakshmi and
Others v. Yatheendradas and Others [2020 (2) KHC 204].
2025:KER:8143
4. A detailed objection was filed by the defendants
contending that if the amendment is allowed that will be permitting
a barred claim to be agitated and that the nature and character of
the suit will be totally changed. It is also contended that the 1 st
defendant was in bed due to old age and the 2 nd defendant was
hospitalised for treatment for a period of one month. It is also to be
noted that both the defendants died during the proceedings and
their legal heirs were impleaded in these proceedings.
5. It is to be seen that OS No.494 of 2002 and OS No.493
of 2002 were filed in the year 2002, whereas OS No.335 of 2005
was filed in the year 2005. Ext.P2 in all these original petitions is
the written statement filed by the defendants, and a perusal of the
written statement filed would reveal that it is filed in all the cases
as early as in 2010, and a specific contention was taken by the
defendant in the written statement that the suit is not maintainable
in as much as the suit ought to have been filed as one for recovery
of damages to be quantified by the Court on the basis of the
estimation of the plaintiff. A perusal of the order impugned reveal
that the evidence is over and the application seeking amendment
was filed only when the case was posted for final hearing. The
Court entered a finding that if the amendment is allowed the same
would result in substituting the nature of the relief sought for in the
2025:KER:8143
plaint, and the matter now sought to be raised by way of
amendment by the plaintiff was well within their knowledge and
manifest the absence of due diligence on the part of the petitioner
which disentitle them for the relief sought for. In the said
background the Court has to consider the contention of the
petitioner that they are entitled for amendment of the plaint as
provided in Order VI Rule 17 CPC. Order VI Rule 17 of CPC deals
with amendment of pleadings reads as follows:-
"17. Amendment of pleadings.--The Court may at any
stage of the proceedings allow either party to alter or amend
his pleadings in such manner and on such terms as may be
just, and all such amendments shall be made as may be
necessary for the purpose of determining the real questions in
controversy between the parties: Provided that no application
for amendment shall be allowed after the trial has
commenced, unless the Court comes to the conclusion that in
spite of due diligence, the party could not have raised the
matter before the commencement of trial."
Though Rule 17 of Order VI of CPC mandates that the Court could
at any stage of the proceedings allow either parties to alter or
amend their pleadings so as to determine the real question of
controversy between the parties, but a proviso has been added to
the said Rule which provides that no application for amendment
shall be allowed after the trial has commenced unless the Court
comes to the conclusion that inspite of due diligence the party
2025:KER:8143
could not have raised the matter before the commencement of the
trial. Admittedly, the trial of the case is over and the application
was filed at a stage when the case was posted for hearing. Going
by the proviso to Order VI Rule 17 CPC it is the duty of the
petitioner to substantiate before the trial Court that inspite of due
diligence the plaintiff could not raise the said matter before the
commencement of trial. In the amendment petitions produced as
Ext.P3 in these writ petitions the only reason stated for the delay in
filing the same is that the omission was realised only on
12.09.2017 while preparing for final argument and that the
omission was not deliberate or wilful. Admittedly, the lacuna in the
pleadings and reliefs sought for in the plaint was brought to the
notice of the plaintiff by the defendants itself in their written
statement filed as early as on 2010. The application seeking
amendment was filed only in the year 2017 i.e. after a lapse of
almost seven years that too after the trial was over and the case
was posted for hearing. There is absolutely no pleadings in the
petition as to why inspite of due diligence the petitioner could not
have raised the matter before the commencement of trial, other
than to say that the omission is not deliberate or wilful and the
same was noticed only on 12.09.2017 while preparing for the final
argument.
2025:KER:8143
6. The Apex Court in Basavaraj v. Indira [2024 KHC
OnLine 6101] has considered a case with similar set of facts,
wherein the lacuna which is sought to be clarified by way of an
amendment was brought to the notice of the plaintiff by the
defendants in their written statement, and the Court relying on the
proviso to Order VI Rule 17 CPC held that the said amendment
cannot be allowed in as much as there is not even a pleading in the
application seeking amendment that due diligence was there at the
time of filing of suit in not seeking reliefs prayed for by way of
amendment, and what has been pleaded was only an oversight
and the same cannot be accepted as a ground to allow the
amendment in the pleadings at the fag end of the trial, especially
when the same was brought to the notice of the plaintiff by the
defendants in the written statement. Relevant potions of the said
judgment reads as follows:-
"3. Learned counsel for the appellant submitted that in the
case in hand, there was a family partition in Original Suit No.
401 of 2003 filed by Smt. Mahadevi and Smt. Sharnamma,
wife and daughter-in-law respectively of defendant
No.1/Shivasharnappa, impleading the plaintiffs and the
defendants as party. A compromise decree dated 14.10.2004
was passed by the Lok Adalat, District Legal Services
Authority, Gulbarga. Thereafter, respondents No. 1 and 2 filed
a fresh suit in 2005 seeking partition of the ancestral
property. Though in the suit pleading was there with reference
2025:KER:8143
to the earlier compromise decree, however for the reasons
best known to the plaintiffs, no challenge was made to the
same. As a result of the order passed by the High Court, the
nature of the suit was changed from partition to declaration,
which is impermissible.
3.1 Further in terms of proviso to Order VI Rule 17 CPC, no
amendment could be allowed after commencement of the
trial. In the case in hand, the suit was at the fag end, as fixed
for arguments.
3.2 It was further submitted that the compromise decree was
passed on 14.10.2004. In terms of the provisions of Order
XXIII Rule 3 CPC, the same could be challenged only before
the same Court and not before any other Court.
3.3 He further contended that there was a specific stand
taken by the appellant/defendant No. 2 in the written
statement that there being a compromise decree in
existence, no relief may be admissible to respondents No. 1
and 2, unless that decree is challenged. The written
statement was filed in August 2005, still no steps taken by
the respondents No. 1 and 2 in that direction. Part of the suit
property having been sold, an amendment was carried out in
the plaint in July 2006 to implead the subsequent purchaser.
Even at that stage, this relief was not sought.
3.4 It was further contended that the relief of declaration of
compromise decree being null and void prayed for by way of
amendment otherwise also was time barred as the
compromise decree was passed on 14.10.2004. The
application for amendment was filed on 08.02.2010. Even the
court fee was sought to be affixed at the time of filing of
application for amendment.
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3.5 The application filed by respondents No. 1 and 2 did not
meet the pre-conditions laid down in Order VI Rule 17 CPC for
permitting respondents No. 1 and 2 to amend the pleadings
at the fag end of the trial. No due diligence was pleaded. All
what was stated was that there was oversight on the part of
respondents No. 1 and 2/plaintiffs.
3.6 Referring to the parties who were there in the
compromise decree, it was argued that some of them are not
parties in the suit in question, hence otherwise also challenge
to the compromise decree may not be maintainable.
3.7 In support of the arguments, reliance was placed upon
the judgments of this Court in Revajeetu Builders and
Developers v. Narayanaswamy and sons and others 2009(10)
SCC 84 and Vidyabai and others v. Padmalatha and another,
2009 (2) SCC 409.
...
8. Proviso to Order VI Rule 17 CPC provides that no
application for amendment shall be allowed after the trial has
commenced, unless the Court comes to the conclusion that in
spite of due diligence, the party could not have raised the
matter before the commencement of trial. In the case in
hand, this is not even the pleaded case of respondents No. 1
and 2 before the Trial Court in the application for amendment
that due diligence was there at the time of filing of the suit in
not seeking relief prayed for by way of amendment. All what
was pleaded was oversight. The same cannot be accepted as
a ground to allow any amendment in the pleadings at the fag
end of the trial especially when admittedly the facts were in
knowledge of the respondents No. 1 and 2/plaintiffs.
..."
2025:KER:8143
This Court in Gireesh Kumar v. Sanalkumar and Another
[2022 ICO 2665] while dealing with Order VI Rule 17 CPC and held
in paragraphs 9 and 10 as follows:-
"9. It is true that the parties to a civil suit can carryout
amendment of their respective pleadings and the intent
behind Order 6 Rule 17 of the Code of Civil Procedure is to
address the real grievance of the parties and to decide the
dispute finally. Thus, all amendments which are necessary in
the interest of justice shall be allowed to address the matter
in controversy and to give a quietus to the litigation.
However, the liberal view in the matter of amendment is
restricted by the proviso to Order 6 Rule 17 when
amendment got canvassed, after commencement of trial.
Proviso to Order 6 Rule 17 imposes a duty on the Court when
amendment sought for after commencement of trial and it is
provided therein that no application for amendment shall be
allowed, after the trial has commenced, unless the Court
comes to the conclusion that inspite of due diligence, the
party could not have raised the matter before the
commencement of trial.
10. In this matter, as rightly argued by the learned counsel
for the respondents and as could be read out from the
averments in the affidavit in support of the amendment
petition, no foundation to see the necessity of amendment
sought for as item No.3 in the petition could be found out
though the said amendment was canvassed after
commencement of trial. In this context, it is held that a party
to a civil suit cannot seek amendments to their pleadings
without narrating and justifying sufficient foundation to get
the amendment allowed and without convincing the Court
2025:KER:8143
regarding the necessity of amendment. Similarly, it is not
permissible to allow amendments without justifying the same
in the affidavit in support of the amendment petition. It is
held further that after commencement of trial, without
complying the satisfaction mandated by proviso to Order 6
Rule 17 CPC, amendment cannot be allowed."
The contention of the petitioner based on Lakshmi and Others'
case cited supra also cannot be accepted. Even in that judgment
this Court has held that the trial Court must examine before
allowing an application for amendment after the trial has
commenced whether it is intended to delay or frustrate the suit
and if the party seeking such amendment has conducted himself
until then diligently but still could not have sought the amendment
before the commencement of the trial.
7. In view of the above, I am of the opinion that the
judgments referred above will squarely apply in the facts and
circumstances of the present case. In view of the same, this Court
is not inclined to interfere with the well considered order of the trial
Judge impugned herein.
Accordingly the above original petitions are dismissed.
Sd/-
VIJU ABRAHAM
JUDGE
sbk/-
2025:KER:8143
APPENDIX OF OP(C) 2101/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.335.2005
ON THE FILE OF I ADDITIONAL SUB COURT,
THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED
BY THE DEFENDANTS N O.S.335/2005 ON THE
FILE OF I ADDITIONAL SUB COURT,
THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT AND PETITION
IN I.A.2544/2017 IN O.S.335/2005.
EXHIBIT P4 TRUE COPY OF THE STATEMENT OF OBJECTION
FILED BY THE COUNSEL FOR THE DEFENDANTS
TO EXHIBIT P3.
EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED
BY 2ND RESPONDENT TO EXHIBIT P3.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 23/06/2018
IN I.A.2544/2017 IN O.S.335/2005 ON THE
FILE OF I ADDITIONAL SUB COURT,
THIRUVANANTHAPURAM.
2025:KER:8143
APPENDIX OF OP(C) 2098/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PAINT IN O.S.494/2002 ON
THE FILE OF 1ST ADDITIONAL SUB COURT,
THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED
BY THE DEFENDANTS IN O.S.NO.494 /2002 ON
THE FILE OF 1ST ADDITIONAL SUB COURT,
THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT AND PETITION
EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED
BY 1ST RESPONDENT TO EXHIBIT P3.
EXHIBIT P4 TRUE COYP OF THE STATEMENT OF OBJECTION
FILED BY THE COUNSEL FOR THE DEFENDANTS
TO EXHIBIT P3.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 23.06.2018
IN I.A.NO.2545/2017 IN O.S.NO.494/2002 ON
THE FILE OF 1-ADDITIONAL SUB COURT,
THIRUVANANTHAPURAM.
2025:KER:8143
APPENDIX OF OP(C) 2099/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS 493/2002 ON
THE FILE OF 1-ADDITIONAL SUB
COURT,THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE AMENDED WRITTEN
STATEMENT FILED BY THE DEFENDANTS IN OPS
493/2002 ON THE FILE OF 1-ADDITIONAL SUB
COURT,THIRUVANANTHAPURAM
EXHIBIT P3 TRUE COPY OF THE ASFFIDAVIT AND PETITION
IN I.A 2543/2017 IN OS 493/2002.
EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED
BY 1ST RESPONDENT TO EXHIBIT P3.
EXHIBIT P4 TRUE COPY OF THE STATEMENT OF OBJECTION
FILED BY THE COUNSEL FOR THE DEFENDANTS
TO EXHIBIT P3.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 23.06.2018
IN I.A.NO.2543/2017 IN O.S.NO.493/2002 ON
THE FILE OF 1-ADDITIONAL SUB COURT,
THIRUVANANTHAPURAM.
