M/S.T.P.Bricks And Potteries vs Nelloli Sainaba Beevi on 11 October, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C).No. 269 of 2010(O)


1. M/S.T.P.BRICKS AND POTTERIES,
                      ...  Petitioner

                        Vs



1. NELLOLI SAINABA BEEVI,
                       ...       Respondent

2. ALIKKAM VEETTIL SHAHUL HAMEED,

3. PUTHIYA PURAYIL HAFEESA,

                For Petitioner  :SRI.V.T.MADHAVANUNNI

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :11/10/2010

 O R D E R
                              THOMAS P. JOSEPH, J.

                             --------------------------------------
                               O.P.(C) No.269 of 2010
                             --------------------------------------
                    Dated this the 11th day of October, 2010.

                                       JUDGMENT

Plaintiff in O.S.No.56 of 2007 of the court of learned Principal Munsiff-II,

Kozhikode is the petitioner before me challenging Ext.P5, order dismissing

I.A.No.2782 of 2009 and refusing to permit petitioners amend the plaint to

incorporate a prayer for recovery of possession. Suit as originally filed was for a

decree for prohibitory injunction against trespass. Respondents/defendants filed

written statement on 02.06.2007 contending that petitioners have no right or

possession over the suit property and that a major portion of the suit property

belongs to and is in their possession. Even before that on 15.02.2007 and

07.04.2007 Advocate Commissioner had inspected the property and submitted

a report to the effect that portions of the suit property are in the possession of

respondents. Case was posted on 02.07.2009 for trial. On the previous day

petitioner filed I.A.No.2782 of 2009 for amendment of plaint to incorporate a

prayer for recovery of possession alleging that respondents trespassed into the

property (described as C schedule in the application for amendment) at a time

when petitioner (partnership firm) was remaining closed. That petition was

allowed by the learned Munsiff. Against that order, respondents filed W.P.(C)

No.23211 of 2009. That petition was allowed as per judgment dated 15.06.2010

directing learned Munsiff to consider the application afresh after giving

petitioner opportunity to file additional affidavit if any to comply with the proviso

to Order VI Rule 17 of the Code of Civil Procedure (for short, “the Code”).

Accordingly petitioner has filed additional affidavit stating that petitioner could

OP(C) No.269/2010

2

not file application for amendment of plaint earlier since the person who

represented petitioner was out of station for some time and due to financial

difficulties petitioner could not function for some time. Petitioner learnt about the

matter only when it contacted its counsel. Respondents countered the

additional affidavit stating that the person who represented petitioner was in

station and had taken part in other proceedings. To prove that, they produced

Exts.B1 to B5. Learned Munsiff considered evidence and came to conclusion

that petitioner was not diligent in conducting the case and dismissed the

application. That order is under challenge. Learned counsel contends that by

the amendment nature and character of the suit will not be changed and

notwithstanding the lapse of time, to avoid multiplicity of suits court below ought

to have allowed the request. Learned counsel placed reliance on the decision of

the Supreme Court in Usha Devi v. Rijwan Ahamd[(2008) 3 SCC 717].

2. No doubt the purpose of allowing amendment is to avoid multiplicity

of suits and as far as possible it is to be granted also. In the case on hand

respondents filed written statement on 02.06.2007 claiming possession of the

property and even before that, Advocate Commissioner had inspected the

property on 15.02.2007 and 07.04.2007 and reported about possession of

respondents. Case was listed on 02.07.2009 and on the previous day

I.A.No.2782 of 2009 was filed with a prayer for recovery of possession alleging

that respondents trespassed into the suit property. The explanation offered by

petitioner for not filing the application in time is found to be not true by Exts.B1

to B5 which show that even during the relevant time the representative of

OP(C) No.269/2010

3

petitioner was available at the spot. Moreover in this case the amendment

sought relates to a thing prior to the institution of suit. Even according to the

petitioner, trespass was prior to the suit. The Supreme Court in Alkapuri

(Deceased) through LRs. [(2009) 3 SCC 467] has held that

incorporating post suit cause of action is different from pre-suit causes of action.

In that case the decision of the High Court reversing the order of the trial court

was found to be unsustainable. The trial court in this case has exercised the

discretion against petitioner. Prayer for recovery of possession sought to be

raised by way of amendment may also involve limitation. No factual basis to

overcome bar of limitation is laid in the plaint. In the circumstances I do not find

reason to interfere with the order of learned Munsiff. It is open to the petitioner

to pursue its remedy if any, for recovery of possession otherwise as provided

under law.

Petition is dismissed with the above observation.

THOMAS P.JOSEPH,
Judge.

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