Kerala High Court
Kumari Reetha vs Baiju Raju on 4 March, 2025
Author: K.Babu
Bench: K. Babu
2025:KER:17930
O.P.(C)No.715 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 4TH DAY OF MARCH 2025 / 13TH PHALGUNA, 1946
OP(C) NO. 715 OF 2019
AGAINST THE ORDER DATED 22.02.2019 IN IA NO.605/2019
IN OS NO.61 OF 2015 OF MUNSIFF COURT,ATTINGAL
PETITIONER/FIRST PETITIONER:
KUMARI REETHA,
AGED 56 YEARS,
D/O. SREEDHARAN,
RESIDING AT REETHA BHAVAN,
KATTUMPURATH, VAMANAPURAM,
PULIMATH VILLAGE,
NOW RESIDING AT AMBADI,
HOUSE NO. 14/809, MANNAMTHALA,
ULLOOR VILLAGE,
THIRUVANANTHAPURAM - 695011
BY ADV
SRI.B.KRISHNA MANI
RESPONDENTS/COUNTER PETITIONER AND PETITIONERS 2 AND 3:
1 BAIJU RAJU,
S/O. SREEDHARAN,
RESIDING AT MALAVIKA,
KATTUMPURATH, VAMANAPURAM,
PULIMATH VILLAGE, CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM - 695006
2 RAJEENA,
D/O. SREEDHARAN,
REETHA BHAVAN, KATTUMPURAM,
PULIMATH VILLAGE,
NOW RESIDING AT J.R.VILLA,
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O.P.(C)No.715 of 2019
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WARD NO.8,
THIRUVANANTHAPURAM DISTRICT 695017
3 SAVITHRI,
D/O. KUNJAN, REETHA BHAVAN,
KATTUMPURAM,
PULIMATH VILLAGE, CHIRAYINKEEZHU,
THIRUVANANTHAPURAM DISTRICT- 695 612
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
04.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:17930
O.P.(C)No.715 of 2019
3
K.BABU, J.
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O.P.(C) No.715 of 2019
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Dated this the 4th day of March, 2025
JUDGMENT
The challenge in this Original Petition is to Ext.P4 order
rejecting an application seeking amendment in the plaint. As per
Ext.P3 application, the plaintiffs sought for incorporating
corrections in the descriptions of the property in the schedule.
The Trial Court dismissed the application holding that the
attempt of the plaintiffs was to get the matter prolonged. The
Trial Court also held that there is nothing to show that inspite of
due diligence the plaintiffs could not have raised the matter
before the commencement of the trial.
2. I have heard the learned counsel for the petitioner.
3. The learned counsel for the petitioner submitted that
the clerical error in the description of the property came to the
notice of the plaintiffs only on 22.02.2019. It is further submitted
that the proposed amendment will not change the character of
the suit.
4. The Apex Court in Life Insurance Corporation of
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India V. Sanjeev Builders Pvt.Ltd, (2022 SCC OnLine SC
1128), after considering numerous precedents in regard to the
amendment of pleadings, culled out certain principles as
follows:-
"(i) All amendments are to be allowed which are
necessary for determining the real question in
controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as is
apparent from the use of the word "shall", in the
latter part of Order VI Rule 17 of the CPC.
(ii) In the following scenario such applications should
be ordinarily allowed if the amendment is for effective
and proper adjudication of the controversy between
the parties to avoid multiplicity of proceedings,
provided it does not result in injustice to the other
side.
(iii) Amendments, while generally should be allowed,
the same should be disallowed if -
(a) By the amendment, the parties seeking
amendment seek to withdraw any clear
admission made by the party which confers a
right on the other side.
(b) The amendment raises a time-barred claim,
resulting in the divesting of the other side of a
valuable accrued right (in certain situations)
(c) The amendment completely changes the
nature of the suit;
(d) The prayer for amendment is malafide,
(e) By the amendment, the other side should
not lose a valid defence.
(iv) Some general principles to be kept in mind are-
(I) The court should avoid a hyper-technical
approach; ordinarily be liberal, especially when
the opposite party can be compensated by
costs.
(II) Amendment may be justifiably allowed
where it is intended to rectify the absence of
material particulars in the plaint or introduce
an additional or a new approach.
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(III) The amendment should not change the
cause of action, so as to set up an entirely new
case, foreign to the case set up in the plaint."
5. Having considered the nature of the amendment
sought to be incorporated on the touchstone of the principles
discussed above, I am of the view that the impugned order is
liable to be set aside. Therefore, the order dated 22.02.2019 in
I.A.No.605 of 2019 in O.S.No.61 of 2015 on the file of the
Munsiff's Court, Attingal, stands set aside. I.A.No. 605/2019 is
allowed. The petitioner is allowed to incorporate the amendment
in the Original Suit within a week from the date of receipt of a
certified copy of this judgment. The defendants are at liberty to
submit additional pleadings. The Suit is of the year 2015. The
Trial Court shall dispose of the Original Suit within three months
from the date of receipt of a certified copy of this judgment.
The Original Petition is disposed of as above.
Sd/-
K.BABU
JUDGE
VPK
2025:KER:17930
APPENDIX OF OP(C) 715/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT, O.S.NO. 61/2015
BEFORE THE MUNSIFF'S COURT, ATTINGAL
DATED NIL
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT WITH
A COUNTER CLAIM IN O.S. NO.61/2015
BEFORE THE MUNSIFF'S COURT, ATTINGAL
DATED NIL
EXHIBIT P3 TRUE COPY OF THE APPLICATION,
I.A.605/2019 IN O.S.NO.61/2015 BEFORE
THE MUNSIFF'S COURT, ATTINGAL DATED
22/2/2019
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 22/2/2019
IN I.A.605/2019 IN O.S NO.61/2015 BEFORE
THE MUNSIFF'S COURT, ATTINGAL
