IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 35204 of 2007(N)
1. KERALA STATE CO-OPERATIVE CONSUMER
... Petitioner
Vs
1. R. VASU, S/O. RAMAN,
... Respondent
For Petitioner :SMT.A.SALINI LAL
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :28/11/2007
O R D E R
M.N. KRISHNAN, J.
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W.P.(C)NO.35204 of 2007 - N
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Dated this the 28th day of November, 2007.
JUDGMENT
This writ petition is preferred against the order of the
Subordinate Judge’s Court, Mavelikara in I.A.No.1634/2007 in
O.S.No.221/2000. The plaintiff in the suit, during the fag end of
the trial, moved an application for amendment, whereby he
wanted to incorporate pleadings regarding damages for use and
occupation from the defendant. The principal contention of the
defendant is that it has not taken the alleged room on rent and
therefore, the question of eviction or payment does not arise. The
suit is of the year 2000 and according to the plaintiff, he got the
property only on 15..3.2002 and, therefore, he is entitled for
damages for use and occupation at the rate of Rs.9,432/=. On the
other hand, the defendant would contend that they have not been
in possession of the premises at all and the key has been offered to
be handed over even before institution of the suit and therefore,
the question of payment of damages for use and occupation does not
arise. Merits and demerits of the contention of that nature is not
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expected to be considered by this Court at the stage of allowing or
dismissing the amendment application The learned counsel would
submit that amendment sought for has been made after the trial
was started and, therefore, under the provisions of the Civil
Procedure Code unless there are warranting reasons, the court
cannot entertain it. When an application for amendment is filed, the
court has to satisfy that it is made bonafide and it is really
necessary for resolving controversy between the parties and for
avoiding multiplicity of proceedings. So far as this case is
concerned there is a total denial and therefore pleadings depend
upon the finding whether it is a tenant or not and secondly if it is
found that it is occupied as a tenant whether there had been
deliberate delay in handing over the key, which has resulted in
any damages to the plaintiff. These are all matters which the court
has to consider. Actually it is a matter which requires consideration
for the reason that claim for damages for use and occupation is
co-related in a suit for eviction and the party shall not be driven
to another suit, so that multiplicity of proceedings can be averted.
It is true that there is delay in filing the amendment application. But,
I have stated earlier that as it is really necessary for resolving
controversy between the parties and as there are bonafides in the
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application and as it will not change the character of the suit and
take away any valid plea of the defendant, I find that the court
below was perfectly justified in allowing the application for
amendment. Therefore, I am not inclined to interfere with the said
order. Needless to say that the court has to permit the defendant
to file additional written statement and if necessary, frame
additional issues and permit both the parties to adduce evidence in
support of the same on that issue and thereafter dispose of the entire
matter in accordance with law.
The writ petition is disposed of accordingly.
M.N. KRISHNAN, JUDGE.
cl
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