Kerala High Court
Saramma vs Varkey on 5 March, 2025
Author: K.Babu
Bench: K. Babu
2025:KER:18629
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946
OP(C) NO. 3156 OF 2015
AGAINST THE ORDER DATED 16.11.2015 IN OS NO.179 OF 2013
OF ASSISTANT SESSIONS COURT/ADDITIONAL SUB COURT,NORTH
PARAVUR
PETITIONER:
SARAMMA,
AGED 60 YEARS,
W/O. JOHN, CHOLAKATTU CHIRAMEL VEEDU, KAKKANAD,
COCHIN 682030,ERNAKULAM
BY ADV SRI.K.K.JAYARAJ NAMBIAR
RESPONDENTS:
1 VARKEY
AGED 72 YEARS, S/O.CHACKO, KOZHIKKAL HOUSE,
POIKATTUSSERY, CHENGAMANAD,
ERNAKULAM DISTRICT-683578
* DIED LRS IMPLEADED
2 ELIAS, AGED 62 YEARS,
S/O.CHACKO, KOZHIKKAL HOUSE, POIKATTUSSERY,
CHENGAMANAD, ERNAKULAM-683578
3 VAREED
AGED 78 YEARS, S/O.CHACKO, KOZHIKKAL HOUSE,
POIKATTUSSERY, CHENGAMANAD,
ERNAKULAM DISTRICT- 683578
* DIED LRS IMPLEADED
4 MARIAMMA,
AGED 77 YEARS, D/O.CHACKO, MOOZHA VEEDU, MATTOOR,
KALADY, ERNAKULAM DISTRICT- 683574
*ADDTL.R5 ACHAMMA,
AGED ABOUT 72 YEARS, W/O VARKEY, KOZHIKKAL HOUSE,
POIKATTUSSERY, CHENGAMANAD,
ERNAKULAM DISTRICT- 683578
O.P (C) No.3156 of 2015 2025:KER:18629
2
ADDTL.R6 JOHN K V,
AGED ABOUT 40 YEARS, S/O. VARKEY,KOZHIKKAL HOUSE,
POIKATTUSSERY, CHENGAMANAD, ERNAKULAM- 683578
ADDTL.R7 KURIAKOSE K V,
AGED ABOUT 48 YEARS,S/O.VAREED, MOOZHA VEEDU,
MATTOOR, KALADY, ERNAKULAM DISTRICT - 683574
ADDTL.R8 BABY,
AGED ABOUT 40 YEARS, S/O.VAREED,MOOZHA VEEDU,
MATTOOR, KALADY, ERNAKULAM DISTRICT - 683574
ADDTL.R9 BEENA,
AGED ABOUT 37 YEARS, D/O.VAREED, MOOZHA VEEDU,
MATTOOR, KALADY, ERNAKULAM DISTRICT - 683574
* ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED
RESPONDENTS 1 AND 3 VIDE ORDER DATED 05.03.2025 IN
I.A.NO.1/2020.
BY ADVS. SRI.V.RAJENDRAN PERUMBAVOOR
THIS OP (CIVIL) HAVING COME UP FOR FINAL HEARING ON
05.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P (C) No.3156 of 2015 2025:KER:18629
3
K.BABU, J.
-------------------------------------------------------
O.P (C) No.3156 of 2015
--------------------------------------------------------
Dated this the 5th day of March, 2025
JUDGMENT
The challenge in this Original Petition is to Ext.P6 order
dated 16.11.2015 in I.A.No.1383/2015 in O.S.No.179/2013 on
the file of the Additional Subordinate Judge's Court, North
Paravur, whereby the trial Court allowed an application
seeking amendment in the written statement.
2. The plaintiff is the petitioner. The defendants
are the respondents.
3. The plaintiff instituted the Original Suit for
partition. The defendants resisted the suit inter alia,
contending that after the death of the father of the parties, a
partition was effected in 1982. They further pleaded that even
before the execution of the partition deed, the property was
divided and allotted to defendant Nos. 1, 2 and 4.
4. The defendants filed an application to
incorporate the plea of adverse possession, limitation and
ouster. The defendants wanted to specifically plead that after
O.P (C) No.3156 of 2015 2025:KER:18629
the death of the father of the parties, defendant No.1 has been
in possession of the property in exclusion of the plaintiff and
all other heirs.
5. I have heard the learned counsel for the
petitioner/plaintiff and the learned counsel for the
respondents/defendants.
6. The learned counsel for the petitioner
submitted that as the trial has already commenced, the Court
below should not have allowed the application without a
finding that in spite of due diligence the parties could not
have raised the matter before the commencement of the trial.
This question was answered by the trial Court in paragraph 9
of the impugned order, which reads thus:-
9. It cannot be disputed that the application is highly
belated as the same was filed when the case was posted for
argument. In Usha Balashaheb Swame and Others v. Kiran
Appaso Swame and Others (2007) 5- SCC 602 it was held as
follows: "It is now well settled by various decisions of this court
as well as those by the High Courts that the courts should be
liberal in granting the prayer for amendment of pleadings
unless serious injustice or irreparable loss is caused to the
other side or on the ground that the prayer for amendment
was not a bonafide one". Having considered the facts of the
case and the defence set up by the defendants it does not
appear that the amendment seeks is not a bonafide one. Now
O.P (C) No.3156 of 2015 2025:KER:18629
the question that requires consideration is whether any serious
injustice or irreparable loss will be caused to the
respondent/plaintiff if the amendment is allowed. In Ma Shwe
Mya v. Maung Mo Hnaung, AIR 1922 PC 249 the Privy Council
observed that it is equally well settled principle that a prayer
for amendment of the plaint and a prayer for amendment of
the written statement stand on different footings. The general
principle that the amendment of pleading cannot be allowed
so as to alter materially or substitute cause of action or the
nature of claim applies to amendments to plait. It has no
counterpart in the principles relating to amendment of the
written statement. Therefore, addition of a new ground of
defence or substituting or alternating a defence or taking
inconsistent pleas in the written statement would not be
objectionable while adding, alternating or substituting a new
cause of action in the plaint may be objectionable. In the case
at hand, though in the written statement filed by the
applicants about the partition of the property or the family
settlement as contended by the 1 st defendant in his written
statement is not pleaded specifically, pleaded that the
property is in the possession of the first, the second and the
fourth defendants since the death of their father. Having
considered those aspects, I do not find reason to hold that the
proposed amendment will cause any serious injustice or
irreparable loss to the respondent. It can never be said that
the contentions are conflicting or new. The delay in filing the
application and the inconvenience caused to the respondent
thereby can be compensated in terms of costs. Hence, I am of
the view that it is proper to allow the application on terms."
7. I have gone through the amendment sought to
O.P (C) No.3156 of 2015 2025:KER:18629
be incorporated. The proposed amendment would not change
the nature and character of the suit. There is nothing to show
that the prayer for amendment is mala fide. The proposed
amendment does not raise a time-barred claim.
8. The Apex Court in Life Insurance
Corporation of 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
does not seek to withdraw any clear admission made by
the party which confers a right on the other side.
O.P (C) No.3156 of 2015 2025:KER:18629
(b) The amendment does not raise 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.
(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."
9. Having considered the nature of the
amendment sought to be included on the touchstone of the
principles discussed above, I am of the view that the
impugned order is not affected with any impropriety or
illegality warranting interference of this Court under Article
227 of the Constitution of India. Therefore, the order dated
O.P (C) No.3156 of 2015 2025:KER:18629
16.11.2015 in I.A.No.1383/2015 in O.S.No.179/2013 stands
confirmed. The plaintiff is at liberty to present additional
pleadings in the form of replication. The suit is of the year
2013. The trial Court is directed to dispose of the Original Suit
within six months from this day.
The Original Petition is dismissed.
Sd/-
K.BABU,
JUDGE
NM
O.P (C) No.3156 of 2015 2025:KER:18629
APPENDIX OF OP(C) 3156/2015
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S NO 179/2013 DATED
18-3-2013 ON THE FILE OF THE FILE OF THE
ADDITIONAL SUB COURT, NORTH PARAVUR
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 7-8-2013
FILED BY THE 1ST DEFENDANT
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT DATED 24-07-
2013 FILED BY THE DEFENDANTS 2 AND 4
EXHIBIT P4 TRUE COPY OF THE PETITION FOR AMENDMENT DATED 14-
07-2015 FILED BY THE DEFENDANTS 2 AND 4
EXHIBIT P5 TRUE COPY OF THE COUNTER STATEMENT DATED 17-10-
2015 FILED BY THE PLAINTIFF
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 16-11-2015 IN I.A NO
1383/2015 IN O.S NO 179/2013 ON THE FILE OF THE
ADDITIONAL SUB COURT, NORTH PARAVUR
