IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32927 of 2009(O)
1. ROSAMMA, W/O.MATHEW,
... Petitioner
Vs
1. KUNJUNJAMMA, W/O.LATE GEORGE JOSEPH,
... Respondent
2. SIMI, D/O.LATE GEORGE JOSEPH,
3. SIJI, D/O.LATE GEORGE JOSEPH,
4. SINI, D/O.LATE GEORGE JOSEPH,
For Petitioner :SRI.T.KRISHNAN UNNI (SR.)
For Respondent :SRI.TOM JOSE (PADINJAREKARA)
The Hon'ble MR. Justice P.BHAVADASAN
Dated :23/03/2010
O R D E R
P. BHAVADASAN, J.
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W.P.(C). No. 32927 of 2009
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Dated this the 23rd day of March, 2010.
JUDGMENT
Aggrieved by the order dated 12.11.2009 in
I.A. 1798 of 2009 in O.S. No.227 of 1994, by which the
trial court allowed an amendment of the written
statement, the plaintiff in O.S. 227 of 1994 before the
Sub Court, Pala has come up in appeal.
2. The petitioner instituted O.S. 227 of 1994,
which is a suit for declaration and recovery of possession
on the strength of title, mesne profits and also for
injunction. The respondents are defendants 2 to 5. The
first defendant, who was the brother of the petitioner
died during the pendency of the suit. The respondents
are his legal heirs.
WPC. 32927/2009. 2
3. According to the petitioner, the plaint schedule
property originally belonged to Ouseph, father of the plaintiff
and the first defendant. He is alleged to have executed a
will in June, 1979 and the plaint schedule properties, which
consisted of two items are included in schedule E to the will.
Ouseph died in 1991. Before his death he had assigned item
No.1 of the plaint schedule property to the plaintiff. At the
time of death of Ouseph, it was not available for bequeath.
As per the terms of the will, item No.2 to the plaint schedule
was to devolve on the mother of the plaintiff and the first
defendant, namely Aley. Only after the life time of the
mother, property was to devolve on the legatees. It is the
case of the petitioners that Aley was given right to alienate
the property during her lifetime. Consequent on the death
of Ouseph, Aley took possession as per the terms of the will.
She is said to have assigned item No.2 to the petitioner.
Thereby, petitioner became the absolute owner of both
items 1 and 2 to the plaint. It is claimed that defendants 2
to 4 were allowed to reside in the house by the plaintiff.
WPC. 32927/2009. 3
After the death of his mother, he wanted them to vacate.
They did not do so. That necessitated the suit.
4. Defendants 2 to 5 contested the suit. They
assailed the assignment of item No.1 in favour of the
plaintiff. As regards item No.2, their contention was that the
right of the mother was confined to life estate and therefore
she could not assign the property to the plaintiff. They
therefore contended that the claim of the plaintiff that he
had absolute rights over plaint items 1 and 2 cannot be
accepted.
5. It appears that parallel letters of administration
proceedings were initiated before the District Court,
Kottayam with respect to the will. Based on the findings in
the L.A.O.P., the trial court found that the assignments in
favour of the plaintiff are valid, and the suit was decreed.
6. The matter was carried in appeal as A.S. 52 of
1999 by the defendants. That was taken up along with the
appeal from L.A.O.P., MFA 1276 of 1997. On a consideration
of the materials before it, this court came to the conclusion
WPC. 32927/2009. 4
that the trial court was not justified in coming to the finding
as it did solely based on the findings in L.A.O.P. proceedings.
This court was of the opinion that an independent evaluation
of the evidence and an independent enquiry ought to have
been conducted by the court below while deciding the issues
involved in the suit and remanded the case. Ext.P1 is the
said judgment.
7. After remand, it is said that the suit came up
for trial and the period fixed by this court had already
expired. It was included in the list for trial on 16.11.2009.
On 9.11.2009 the defendants said to have filed an
amendment application of the written statement
incorporating new pleas including one of non-joinder of
necessary parties as per I.A. 1798 of 2009. Copy of the said
petition is produced as Ext.P2. That was opposed by the
petitioner. But overruling the objections of the petitioner,
the amendment application was allowed and the order is
produced as Ext.P3. The said order is under challenge.
WPC. 32927/2009. 5
8. Learned counsel appearing for the petitioner
pointed out that the court below was not justified in allowing
the amendment and it fell outside the scope of the remand
order by this court. It was also pointed out that the court
below has omitted to note the proviso to Order VI Rule 17 of
the Code. The further contention was that the court below
ought to have noticed that new matters are sought to be
brought in by way of amendment, which is impermissible in
law. An amendment is sought for incorporating a plea of
non-joinder of necessary parties, which was to be taken at
the earliest stage. This according to learned counsel is not
warranted in law.
9. Learned counsel appearing for the respondents
on the other hand pointed out that the amendments are only
clarifications or explanations or giving of particulars of the
pleas already available in the written statement and that
does not constitute any new plea. The amendment sought
for are with reference to the will which was already
available in the first instance. Further amendment was
WPC. 32927/2009. 6
sought for on the basis of Ext.A4 document, which was
produced by the plaintiff herself. Therefore it was
contended that the socalled amendment cannot be said to
have taken by surprise nor she is justified in saying that she
is prejudiced by the order allowing amendment of the
written statement.
10. Copy of the amendment application made
available to this court shows that the amendment sought for
were with reference to Ext.A4 produced by the plaintiff
herself. It is true that this court had fixed a time limit for
disposal of the suit. The amendments sought for under the
documents said to have been executed by the father of the
petitioner in favour of the petitioner is not valid in law.
Annexure A4 letter shows the real state of affairs, and that
shows the state of health of the assignor at the time of
executing the document. Then the said amendment sought
for is with reference to the assignment made by the mother.
Yet another amendment is to the effect that improvements
WPC. 32927/2009. 7
have been made in the property by the first defendant. Of
course there is also a plea of non-joinder of necessary
parties.
11. Before going further into the issues, it may be
useful to refer to the order of remand made by this court.
The relevant paragraph is paragraph 31. The following
paragraph is also relevant in this context:
“Since the matter is remitted to the
court below, and the judgment and decree is set
aside, the court below will consider the question
afresh, including the question of mesne profits.”
12. Order VI rule 17 of the CPC reads as follows:
“17. Amendment of pleadings.- The Court
may at any stage of the proceedings allow either
party to alter or amend his pleadings in such
manner and on such terms as may be just, and all
such amendments shall be made as may be
necessary for the purpose of determining the real
questions in controversy between the parties:
WPC. 32927/2009. 8
Provided that no application for amendment
shall be allowed after the trial has commenced,
unless the Court comes to the conclusion that in
spite of due diligence, the party could not have
raised the matter before the commencement of
trial.”
The contention taken is that there is no finding by the court
that the pleadings now taken by the defendants in the
written statement could not have been raised by them even
after due diligence at the earlier stage. According to learned
counsel the amendment of the written statement is a matter
of course and circumscribed by the Code. After the recent
amendment of the CPC, the provisions have become very
stringent. According to learned counsel the court below has
not properly applied the proviso to the issue on hand.
13. In reply, the learned counsel for the
respondents pointed out that no new grounds are sought to
be introduced in the written statement and the nature of
the amendments which are sought for are only explanatory
WPC. 32927/2009. 9
in nature. None of the amendments sought for introduced a
new plea or defence and therefore the petitioner cannot
have any grievance.
14. The principles regarding the amendment of
pleadings are well settled. By now it is well established that
if the court concerned finds that the amendment is
necessary to avoid multiplicity of suit or for effective
adjudication of the suit and the issues involved in the suit,
even though the amendment sought for is belated, that
should be allowed. It has also been held that any injury
that may be caused can be compensated by awarding costs.
15. In the case on hand there is nothing to show
that except the amendment sought for with reference to the
non-joinder of necessary parties, the other amendments
introduced any new pleading. True, there is a claim that
improvements in the property have been made by the first
respondent. But one has to notice that the claim of the first
respondent is that he is in possession of the property and
the document executed in favour of the plaintiff by her
WPC. 32927/2009. 10
parents are invalid in law. It could not be said that any new
material is introduced. It is only explanatory in nature as
rightly pointed out by the learned counsel for the
respondents.
16. But the matter stands on a different footing as
far as the plea of non-joinder is concerned. That was a plea
which was available to the first defendant at the first stage
and there were no reasons given as to why he has not taken
that plea at the initial stage. If the finding goes in favour of
the first defendant, that will cause considerable prejudice to
the plaintiff in maintaining the suit.
17. In the decision reported in Ragu Thilak D.
John v. S. Rayappan ((2001) 2 SCC 472) it was held as
follows:
“In view of the subsequent developments,
the appellant filed an application under Order 6
Rule 17 for the amendment of the plaint for
adding paras 8(a) to 8(f) in his plaint. The trial
court rejected his prayer and the revision petition
filed against that order was dismissed by the High
WPC. 32927/2009. 11
Court vide order impugned in this appeal, mainly
on the ground that the amendment, if allowed,
would result in introducing a new case and cause
of action. It was further held that as the appellant
was seeking recovery of damages, the
amendment could not be allowed as it would
allegedly change the nature of the suit. It was
also observed that the amendment sought was
barred by limitation.
After referring to the judgments in Charan
Das v. Amir Khan, L.J. Leach &Co. Ltd. v. Jardine
Skinner & Co., Ganga Bai v. Vijay Kumar, Ganesh
Trading Co. v. Moji Ram and various other
authorities, this Court in B.K. Narayana Pillai v.
Parameswaran Pillai held:
“3. The purpose and objection of Order6 rule 17 CPC
is to allow either party to alter or amend his pleadings in
such manner and on such terms as may be just. The
power to allow the amendment is wide and can be
exercised at any stage of the proceedings in the interests
of justice on the basis of guidelines laid down by various
High Courts and this Court. It is true that the amendment
cannot be claimed as a matter of right and under all
circumstances. But it is equally true that the courts while
deciding such prayers should not adopt a hypertechnical
approach. Liberal approach should be the general rule
particularly in cases where the other side can be
WPC. 32927/2009. 12
compensated with the costs. Technicalities of law should
not be permitted to hamper the courts in the
administration of justice between the parties.
Amendments are allowed in the pleadings to avoid
uncalled-for multiplicity of litigation.”
18. In the decision reported in Baldev Singh v.
Manohar Singh (2006(3) KLT 953(SC))the approach that
the courts should make in deciding an application for
amendment was emphasized. In that decision the court held
as follows:
“Keeping this principle in mind, let us
now consider the provisions relating to
amendment of pleadings. O.6 R.17 of the ode of
Civil Procedure deals with amendment of
pleadings which provides that the Court may at
any stage of the proceedings allow either party to
alter or amend his pleadings in such manner and
on such terms as may be just, and all such
amendments shall be made as may be necessary
for the purpose of determining the real questions
in controversy between the parties. A bare
perusal of this provision, it is pellucid that O.6
WPC. 32927/2009. 13
R.17 of the ode of Civil Procedure consists of two
parts. The first part is that the Court may at any
stage of the proceedings allow either party to
amend his pleadings and the second part is that
such amendment shall be made for the purpose of
determining the real controversies raised between
the parties. Therefore, in view of the provisions
made under O.6 R.17 of the CPC it cannot be
doubted that wide power and unfettered
discretion has been conferred on the Court to
allow amendment of the pleadings to a party in
such manner and on such terms as it appears to
the Court just and proper. While dealing with the
prayer for amendment , it would also be
necessary to keep in mind that the Court shall
allow amendment of pleadings if it finds that delay
in disposal of Suit can be avoided and that the suit
can be disposed of expeditiously. But the Code of
Civil Procedure (Amendment) Act, 2002 a proviso
has been added to Order 6 Rule 17 which restricts
the Courts from permitting an amendment to be
allowed in the pleadings either of the parties, if at
the time of filing an application for amendment,
the trial has already commenced. However, Court
may allow amendment if it is satisfied that in spite
WPC. 32927/2009. 14
of due diligence, the party could not have raised
the matter before the commencement of trial. ”
19. In the decision reported in B.K. Narayana
Pillai v. Parameswaran Pillai ((2000) 1 SCC 712) it was
held as follows:
“The mere fact that the appellant had filed
the application after a prolonged delay could not
be made a ground for rejecting his prayer
particularly when the respondent-plaintiff could be
compensated by costs. the finding of the High
Court that the proposed amendment virtually
amounted to withdrawal of any admission made
by the appellant and that such withdrawal was
likely to cause irretrievable prejudice to the
respondent is erroneous.
The purpose and object of Order 6 Rule
17CPC is to allow either party to alter or amend
his pleadings in such manner and on such terms
as may be just. The power to allow the
amendment is wide and can be exercised at any
stage of the proceedings in the interests of justice
on the basis of guidelines laid down by various
High Courts and the Supreme Court. It is true that
WPC. 32927/2009. 15
the amendment cannot be claimed as a matter of
right and under all circumstances. But it is
equally true that the courts while deciding such
prayers should not adopt a hypertechnical
approach. Liberal approach should be the general
rule particularly in cases where the other side can
be compensated with the costs. Technicalities of
law should not be permitted to hamper the courts
in the administration of justice between the
parties. Amendments are allowed in the pleadings
to avoid uncalled-for multiplicity of litigation.
The principles applicable to the amendments
of the plaint are equally applicable to the
amendments of the written statements. The
courts are more generous in allowing the
amendment of the written statement as the
question of prejudice is less likely to operate in
that event. The defendant has a right to take
alternative plea in defence which, however, is
subject to an exception that by the proposed
amendment the other side should not be
subjected to injustice and that any admission
made in favour of the plaintiff is not withdrawn.
All amendments of the pleadings should be
allowed which are necessary for determination of
WPC. 32927/2009. 16
the real controversies in the suit provided the
proposed amendment does not alter or substitute
a new cause of action on the basis of which the
original lis was raised or defence taken.
Inconsistent and contradictory allegations in
negation to the admitted position of facts or
mutually destructive allegations of facts should
not be allowed to be incorporated by means of
amendment to the pleadings.”
19. In the light of the principles above mentioned,
the amendment now sought for by the defence do not
militate against any of the principles so laid down by the
apex court. No prejudice whatsoever is caused to the
plaintiff by the amendment sought to be incorporated by the
defendants except the one relating to non-joinder. That as
already stated stands on a different footing.
WPC. 32927/2009. 17
In the result, this petition is partly allowed and
that portion of the order in I.A.1798 of 2009, which permits
amendment of the written statement incorporating the plea
of non-joinder of necessary parties is quashed and the rest
of the order is maintained.
P. BHAVADASAN,
JUDGE
sb.