IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22882 of 2010(O)
1. SARASWATHY @ SARASU ARAVINDAN,
... Petitioner
2. SHEEBA, W/O.BINU, AGED 30,
3. BINU, S/O.MOHANAN, AGED 33,
Vs
1. RAMU PRABHAKARAN, AGED 53,
... Respondent
2. SATHYADEVI, W/O.ARAVINDAN, AGED 60,
3. CHANDRAMATHY MADHAVAN, W/O.MADHAVAN,
4. LALITHA, W/O.STALIN, AGED 56,
For Petitioner :SRI.K.C.CHARLES
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :22/07/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) No.22882 of 2010
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Dated this the 22nd day of July, 2010
J U D G M E N T
Writ Petition is preferred by defendant Nos.2, 4 and 5 in
O.S. No.814 of 2007 of the court of learned Principal Sub Judge,
Ernakulam challenging a single line order (Ext.P5) by which
learned Principal Sub Judge has allowed an application for
amendment of plaint a second time notwithstanding that the
application was opposed by petitioners. The suit is for partition of
ten cents which originally belonged to Dayalu, mother of
petitioners and respondents. Respondent Nos.1 to 4 claimed
partition of the said property. Petitioners contended that Dayalu
had gifted three cents and a building in favour of petitioner Nos.2
and 3 as per gift deed of the year 2005 and another one cent in
favour of petitioner No.1 as per an another gift deed of the same
year and those gift deeds having been accepted by petitioners,
property referred to therein is not available for partition. While so
respondents filed Ext.P2, application for amendment to incorporate
a contention that Dayalu had no right or authority to execute the
gift deeds since she acquired property on behalf of her husband
and children. That application was allowed. Not satisfied with
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that respondents came up with Ext.P3, application for
amendment of plaint. There, plea sought to be incorporated by
amendment is that the gift deeds were got executed by the
beneficiaries thereunder by undue influence and other vitiating
circumstances and hence the gift deeds are not valid. Application
was opposed by petitioners. Learned Sub Judge has passed the
following order,
“Heard both sides. I.A allowed. Carry out
amendment within 14 days. I.A closed.”
2. Learned counsel for petitioners contends that the
impugned order is not a speaking order and at any rate on the
facts also court below was not justified in allowing amendment.
3. I agree with learned counsel that learned Sub Judge
ought to have passed a reasoned order. Necessity to pass
speaking orders has been highlighted by superior courts on
various occasions, the last being CCT v. Shukla & Brothers
([2010] 4 SCC 785) where it is stated that reasons are the soul of
orders and non-recording of reasons could lead to dual infirmities,
firstly which may cause prejudice to the affected party and
secondly, more particularly hamper proper administration of
justice. The impugned order does not conform to the
requirements of the decision supra. But now the question for
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decision is whether for the said reason alone I should interfere
with the order and remit the case to the court below for fresh
consideration considering the facts and circumstances of the case.
4. According to the petitioners in spite of petitioners
referring to the impugned gift deeds in the reply notice
respondents did not make any mention about that in the plaint.
Even later by Ext.P2, application what was incorporated by
amendment is that Dayalu had no right or authority to execute
the gift deeds which meant that respondents admitted execution
of gift deeds. Admission of execution must be admission as a
valid document. Admission must be of due execution and
attestation (See S.R.Srinivasa & Others v.
S.Padmavathamma – [2010] 5 SCC 274). In Ext.P3, application
amendment sought is to the effect that gift deeds are invalid for
vitiating circumstances stated therein. It is not as if respondents
are not entitled to take up alternative plea regarding execution of
gift deeds and its validity. Concededly trial of the case has not
commenced and as learned counsel would put it, application was
preferred on the date of trial. All amendments which are
necessary to decide the controversy are to be allowed unless it
resulted in prejudice to opposite party which cannot be
compensated in terms of money. Having regard to all these
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aspects I am not persuaded to think that respondents had no
right to seek amendment as per Ext.P3 and the application ought
to have been disallowed. After all petitioners will get an
opportunity to file additional writ statement. In these
circumstances notwithstanding that the order passed by learned
Sub Judge is not a speaking order I do not consider it necessary to
set aside the impugned order and remit it to the court below
which will only be an empty formality.
Writ petition fails and it is dismissed. Petitioners shall be
given opportunity to file additional written statement in answer to
the amended plaint.
THOMAS P. JOSEPH, JUDGE.
vsv