IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4470 of 2009(F)
1. N.S. VIJAYAN, AGED 59 YEARS,
... Petitioner
2. VIJESH, AGED 24 YEARS,
Vs
1. SHYLESAN, S/O. LATE DAMODARAN,
... Respondent
For Petitioner :SRI.P.K.IBRAHIM
For Respondent :SRI.A.T.ANILKUMAR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :02/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.4470 of 2009 - F
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Dated this the 2nd day of July, 2009
J U D G M E N T
This writ petition is filed seeking the following reliefs:
“i) To call for the records I.A.No.4153/2008 in
O.S.No.885/2007 on the files of the Principal Munsiff’s
Court, Alappuzha and set aside Ext.P8.
ii) To issue an interim order staying the proceeding
in O.S.No.885/2007 on the files of the Principal
Munsiff’s Court, Alappuzha, pending disposal of the
writ proceedings.”
2. Petitioners are the defendants in O.S.No.885/2007 on
the file of the Principal Munsiff Court, Alappuzha. Suit was one
for injunction and the respondent is the plaintiff. After
commencement of the trial, the respondent moved an application
to amend some mistakes in the description of the boundaries
shown in the plaint schedule, which was objected to by the
petitioners/defendants. The learned Munsiff after hearing both
sides allowed the amendment application. The amendment was
carried out in the plaint. The respondent/plaintiff gave a copy of
W.P.(C).No.4470 of 2009 – F
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the amended plaint to the petitioners/defendants. It was noticed
during the trial that in the copy of the amended plaint given to
the defendants there was a mistake and the correction made was
not truly reflected. Thereupon, petitioners/defendants moved an
application to strike out the amendment already carried in the
plaint contending that the plaintiff has practiced a fraud on the
court and also on the opposite party. Ext.P7 is the copy of that
application. Learned Munsiff, after hearing both sides, found that
it was only an inadvertent mistake on the part of the
respondent/plaintiff, which deserved to be condoned. The
plaintiff was directed to hand over a corrected copy of the
amended plaint to the defendants and the defendants was
provided with an opportunity to further cross examine the
plaintiff, already examined as PW1. Ext.P8 is the copy of that
order. Correctness and propriety of Ext.P8 order is impeached by
the petitioners/defendants invoking the supervisory jurisdiction
vested with this Court under Article 227 of the Constitution of
India.
W.P.(C).No.4470 of 2009 – F
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3. I heard the counsel on both sides.
4. Learned counsel for the petitioner urged before me
that even in the written statement a specific contention was
taken, of the mis-description of the plaint schedule property in
respect of which the decree for injunction was sought for. After
the case came up in the list for trial and that too only after
commencement of recording of evidence, the plaintiff took any
steps for correcting the mis-description in the plaint schedule.
The commissioner deputed to conduct a local inspection, it is
submitted by the counsel, has also noted such mis-description in
the plaint schedule. There was culpable negligence and
deliberate latches on the part of the plaintiff in moving for the
amendment to correct the plaint schedule and, so much so, the
learned Munsiff was not justified in allowing the amendment
application. The further grievance of the counsel is that even if
the amendment was permitted to be carried out in the plaint, the
plaintiff practiced fraud upon the defendants by serving them a
copy of the plaint carrying a mis-description of the plaint. Ext.P7
application moved by the defendant to strike out the amendment
W.P.(C).No.4470 of 2009 – F
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carried in the plaint ought to have been given serious
consideration, and according to the counsel, Ext.P8 order is liable
to be set aside.
5. The challenge raised in the writ petition is confined to
Ext.P8 order and so much so, any question as to the propriety
and correctness of the order passed by the learned Munsiff
allowing the amendment application is outside the scope of this
petition. Learned counsel for the petitioners fairly submitted that
a challenge against the amendment was not taken in the present
petition since it had been challenged earlier by way of a writ
petition unsuccessfully, and this Court has upheld the order of the
learned Munsiff, allowing the amendment. The question now
posed for consideration is very much limited and it is confined to
whether the learned Munsiff in exercising her judicial discretion
has flouted any principle of law or rules governing procedure. By
filing Ext.P7 petition, defendants in the suit were seeking for
striking out the amended portion from the pleadings. Striking
out of pleadings by the court is covered by Order VI Rule 16 CPC
and it is permissible only under the three circumstances
W.P.(C).No.4470 of 2009 – F
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enumerated thereunder. The case in hand does not come within
any of the circumstances covered by Order VI Rule 16 CPC. Then
the question is whether any prejudice had been caused to
defendants by the copy of the amended plaint given by the
plaintiff which contained some mistake with respect to the
amendment carried out in the plaint filed before the court. In
this context, it has to be taken note that before filing of an
amendment application, the party moving for such amendment
has to hand over a copy of such petition to the opposite party.
But, there is no provision in the CPC mandating serving of a copy
after amendment is carried out. It appears that the plaintiff was
gracious enough to hand over an amended copy of the plaint to
the opposite party, but, some mistakes were in the copy given.
That cannot be taken as a serious lapse, and no fraud can be
attributed to the plaintiff of deliberately misleading the defendant
in any manner. Perusing Ext.P8 order, I find that the learned
Munsiff has appreciated the situation rightly and correctly and
exercised her discretion soundly. The learned Munsiff has taken
care that no prejudice is caused to the defendant in serving of a
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copy of the plaint containing a mis-description, by ordering the
plaintiff to serve a copy showing the correct amendment carried
out in the plaint. The order further discloses that the defendant
was given opportunity to cross examine PW1 again after
corrected amended copy is given. No interference with Ext.P8
order emerges for consideration in the facts and circumstances of
the case, which is found to be proper and correct.
The writ petition is closed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-