IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18681 of 2009(O)
1. VADAKKOTH CHEMBU VALAPPIL
... Petitioner
2. VADAKKOTH CHEMBU VALAPPIL PRABHAKARAN
3. VADAKKOTH CHEMBU VALAPPIL SATHYAVATHI
4. C.V.SAJI, AGED 35 YEARS,
Vs
1. VADAKKOTH CHEMBU VALAPPIL DEVAKI AMMA,
... Respondent
2. C.V.SASIDHARAN, AGED 51 YEARS,
3. C.V.SURESAN, AGED 45 YEARS,
4. VADAKKOTH CHEMBU VALAPPIL SAROJINI AMMA,
5. C.V.GEETHA, AGED 49 YEARS,
6. C.V.LATHA, AGED 44 YEARS,
7. C.V.SAJITH, AGED 41 YEARS,
8. VADAKKOTHU CHEMBU VALAPPIL KAMALA
9. C.V.NISHA, 43 YEARS,
10. C.V.BINDU, 40 YEARS,
11. C.V.SUJA, AGED 35 YEARS,
12. C.V.SHEEJA, AGED 36 YEARS,
13. VADAKKOTH CHEMBUVALAPPIL PRABHAVATHI
14. C.V.VASANTHA AMMA, AGED 53 YEARS,
15. C.V.VIJAYAN, AGED 50 YEARS,
16. C.V.SUBHASHINI, AGED 46 YEARS,
17. C.V.PADMAJA, AGED 39 YEARS,
18. VADAKKOTHU CHEMBU VALAPPIL RAVEENDRAN,
19. VADAKKOTHU CHEMBU VALAPPIL RASMI,
For Petitioner :SRI.N.M.MADHU
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :03/07/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No. 18681 OF 2009 O
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Dated this the 3rd day of July, 2009
J U D G M E N T
Petitioners are defendants 1, 6, 7 and 9 in OS.No.180/06 on the file of the Sub Court, Kozhikode. The
respondents are the plaintiffs and other defendants in the suit.
Suit is one for partition. After the commencement of the trial, the
plaintiff moved an application to include one item of property also
in the schedule which was objected to by some of the defendants.
The learned Sub Judge, after hearing both parties, allowed the
amendment application. Ext.P5 is the copy of that order.
Impeaching the propriety and correctness of that order, the
petitioners have approached this court and filed this writ petition
invoking the supervisory jurisdiction vested with this court under
Article 227 of the Constitution of India.
2. Having regard to the facts and circumstances
presented with reference to Ext.P5 order impugned in the writ
petition, I find that notice to the respondents is not necessary and
it is dispensed with.
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3. I heard the learned counsel for the petitioner. Inviting
my attention to paragraph 8 of the plaint, copy of which is
produced as Ext.P1, it is submitted by the counsel that the
plaintiffs have deliberately left out the item subsequently sought to
be included in the schedule from the purview of the suit and so
much so, this was a case where the bar under the proviso to Order
6 Rule 17 applied with all force showing that the amendment
sought for was within the knowledge of the plaintiff even at the
time of filing of the suit. Emphasising on the impact of the proviso
in granting amendment, the learned counsel submitted that unless
the court comes to the conclusion that in spite of due indulgence
the party could not have raised the matter before the
commencement of trial the proposed amendment cannot be
allowed. Reliance is also placed upon the decision rendered by
the apex court in Vidyabai Vs. Padmalatha [2009 (1) KLT SN 14
(C.No.13) SC] to contend that Ext.P5 order is unsustainable in
law. After perusing Ext.P5 order, I am unable to agree with the
submissions made by the counsel. The learned Sub Judge, after
appreciating the controversy raised for adjudication in the suit and
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taking note that the suit is one for partition exercised his discretion
in favour of the plaintiff allowing the amendment sought for. True,
in the plaint, it is stated that some items of properties derived by
inheritance are left out from the suit. Whether the item now
sought to be included falls within those covered by the averments
in paragraph 8 there is no material. Even if that be so, so long as
the defendants are not having a case that the item sought to be
included is not divisible and does not come within the joint
ownership of the parties no fault could be found with the court for
permitting the plaintiff to amend the suit to incorporate that item
also for an effective adjudication of all controversies to sever the
joint ownership over the properties between the parties. In
considering an amendment application the most cardinal principle
is whether such amendment is necessary for the purpose of
determining the real controversy between the parties. No benefit
is going to come to the defendants if the property which is sought
to be included by way of amendment is left out of the suit. Any
sharer can file a separate suit so long as it continues under joint
ownership. In Eapen Antony Vs. Joseph [2009 (2) KLT 849], this
WPC.18681/09
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court has held that amendment can be allowed after closure of the
evidence and at any stage before the judgment if it does not alter
the nature of suit or cause prejudice to the opposite side. What
prejudice is being caused to the defendants by the proposed
amendment in including one item more in the schedule is a
mystery. Delay in moving the amendment appears to be the sole
reason for the objection and that objection is taken care of the
learned Sub Judge by ordering the plaintiff to pay cost to the
contesting defendants. The applicability of the decision Vidyabai
Vs. Padmalatha [2009 (1) KLT SN 14(C.No.13) SC] relied by the
learned counsel to the facts of the case cannot be analysed as the
full text is not available. But, it is seen from the brief notes that the
defendant had sought for amendment of his written statement in a
suit for specific performance setting forth an entirely new case
after the commencement of the trial. No decision can be read in
isolation without reference of the facts in considering its
applicability to a different case. At any rate, in my view having
regard to the fact the present suit is one for partition and if an item
of the property is left out it would only cause irreparable injury of
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the parties and perhaps steal precious time of the court also later
by another suit at the instance of the one or other sharers the
discretion exercised by the learned Sub Judge in allowing the
amendment application has to be treated as proper, valid and
correct. Writ petition is dismissed.
Sd/-
(S.S. SATHEESACHANDRAN, JUDGE)
aks
// True Copy //
P.A. to Judge