IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34250 of 2008(B)
1. KANDOTH THAMASIKKUM CHATHIALAM VEETTIL
... Petitioner
Vs
1. CHATHIALAM VEETTIL PARVATHI,
... Respondent
2. CHATHIALAM, VEETTIL KUNHIKRISHNAN,
For Petitioner :SRI.B.KRISHNAN
For Respondent :SRI.GEORGE THOMAS (MEVADA)
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :09/09/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.34250 OF 2008 (B)
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Dated this the 9th day of September, 2009
J U D G M E N T
The writ petition is filed seeking mainly the following
relief:
i. to set aside Ext.P1 order and direct the
learned Munsiff, Nadapuram to allow
Ext.P5 petition;
2. Petitioner is the plaintiff in O.S.No.85 of 2007 on the
file of the Munsiff Court, Nadapuram. Suit is one for
perpetual prohibitory injunction, and the respondents are the
defendants. After the suit came up for trial, the plaintiff
moved an application for amendment of the plaint to seek
additional reliefs of mandatory injunction and also a
declaration that the respondents/defendants have no right of
way through her property. That application was opposed to
by the defendants by filing objections. The learned Munsiff,
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after hearing both sides, dismissed the application. Propriety
and correctness of that application is challenged in the writ
petition invoking the supervisory jurisdiction vested with this
Court under Article 227 of the Constitution of India.
3. I heard the learned counsel on both sides. The
learned counsel for the petitioner/plaintiff submitted that the
amendment sought for is essential to resolve the controversies
involved in the suit and to avoid multiplicity of suits. After the
institution of the suit, a concrete slab was put over a channel
to connect the property of the defendants with that of the
petitioner/plaintiff, and by way of a decree of mandatory
injunction, that slab is sought to be removed, and as the
defendants have raised a contention that they have a right of
way through the property of the plaintiff, a decree of
declaration that no such way existed through the plaint
property is also sought for, submits the counsel. Conceding
that even in the Commission report collected immediately
after the filing of the suit and also in the written statement,
reference is made to the installing of a new concrete slab, as
WPC.34250/08 3
indicated above, it is submitted, there was no wilful laches or
deliberate default on the part of the petitioner/plaintiff in
moving for an amendment before the commencement of the
trial. On the other hand, the learned counsel for the
respondents/defendants submitted that absolute lack of
diligence on the part of the petitioner/plaintiff, is borne out by
the facts and circumstances presented in the case in applying
for the proposed amendment. Petitioner/Plaintiff was aware
of the presence of the slab soon after the filing of the suit, and
that was specifically stated in the written statement of the
defendants also, submits the counsel. Inviting my attention to
the proviso to Order VI Rule 17 of the Code of Civil Procedure,
the learned counsel for the respondents/defendants submitted
that in the absence of the party showing that the amendment
could not have been sought for earlier, the court has no
jurisdiction to entertain amendment application after the
commencement of the trial.
4. I have perused Ext.P1 order passed by the court
below taking note of the submissions made by the counsel on
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both sides. The amendment was sought for belatedly, is the
main reason which persuaded the learned Munsiff to disallow
the request of the plaintiff for claiming additional reliefs in the
suit. The crucial question that has to be looked into in
examining the merit of the application for amendment is
whether it is required for resolving the controversies arising
for adjudication in the suit. Of course, the impact of the
proviso to Order VI Rule 17 of the CPC has also to be taken
note of in appreciating whether the proposed amendment is
allowable or not. In analysing the impact of the provision, it
is also to be looked into what is the prejudice, if any, caused to
the opposite side if the amendment is allowed. I do not think
that the proviso to Order VI Rule 17 of CPC has been brought
in to deny any amendment that is proposed after the
commencement of the trial. However, proviso imposes an
interdiction that when such an amendment is sought for after
the commencement of the trial, the party seeking it should
show that in spite of due diligence, the amendment could not
be applied for earlier. Of course, in the given facts of the
case, the petitioner/plaintiff was fully aware of the existence of
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the concrete slab, which is alleged to have been installed,
according to her, immediately after the filing of the suit. The
respondents/defendants in the written statement also had
adverted to the presence of the concrete slab, which
according to them, gave access to the pathway, running
through the property of the petitioner/plaintiff. Whether those
circumstances by themselves would constitute laches on the
part of the plaintiff in moving an amendment earlier is the
question that emerges for consideration. It has to be pointed
out that the pleadings are the handworks of the professionals
and not of the parties. Any defect in the pleadings very often
comes to the notice of the party only when the case comes up
for trial. Proviso to Order VI Rule 17 of CPC is not intended
to bar all amendments proposed after the commencement of
the trial, but, only such amendments which are likely to delay
and protract the proceedings, and thus prevent the completion
of the trial once it is commenced. The words “due diligence”
should receive a liberal interpretation and it cannot be given a
narrow and limited meaning that any lapse on the part of the
party in seeking amendment should be subjected to strict
WPC.34250/08 6
scrutiny to find out whether that party could have moved that
application at an earlier point of time. The totality of the facts
and circumstances involved, the reliefs claimed, the
amendment proposed, everything have to be taken into
account by the court in judging the conduct of the party to
examine whether there was absence of due diligence in
moving the proposed amendment earlier. So long as there is
absence of culpable neglect or wilful default, and especially in
a case where it is shown that the proposed amendment is
essential to resolve the controversies involved, the court
should incline to grant the amendment, so that multiplicity of
proceedings could be avoided. The learned counsel for the
petitioner submitted that petitioner is confining the proposed
amendment only for seeking the decree of mandatory
injunction alone for removal of the slab and not pressing the
other one for the declaration that there is no pathway through
the property. It is further submitted that no further evidence
is also necessary by allowing the proposed amendment as the
particulars furnished in the commission report are sufficient
to consider the question emerging by that amendment.
WPC.34250/08 7
Taking note of the submissions made and making it clear that
the amendment will be limited to the manner indicated by the
counsel, and no further opportunity will be provided to the
plaintiff to take out a commission in the case, I direct the court
below to allow the amendment of the plaint only in respect of
the mandatory injunction sought for. The proposed
amendment limited as indicated shall be granted subject to
the payment of costs of Rs.750/- to the defendants within the
time fixed by the court below. The defendants shall be given
opportunity to file additional written statement. The
amendment being carried out, both sides will be given
opportunity to examine parties on that limited question alone.
Writ petition is disposed in the manner indicated above.
S.S.SATHEESACHANDRAN
JUDGE
prp