{"id":114645,"date":"2010-03-23T00:00:00","date_gmt":"2010-03-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rosamma-vs-kunjunjamma-on-23-march-2010"},"modified":"2015-05-12T13:08:15","modified_gmt":"2015-05-12T07:38:15","slug":"rosamma-vs-kunjunjamma-on-23-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rosamma-vs-kunjunjamma-on-23-march-2010","title":{"rendered":"Rosamma vs Kunjunjamma on 23 March, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Rosamma vs Kunjunjamma on 23 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 32927 of 2009(O)\n\n\n1. ROSAMMA, W\/O.MATHEW,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. KUNJUNJAMMA, W\/O.LATE GEORGE JOSEPH,\n                       ...       Respondent\n\n2. SIMI, D\/O.LATE GEORGE JOSEPH,\n\n3. SIJI, D\/O.LATE GEORGE JOSEPH,\n\n4. SINI, D\/O.LATE GEORGE JOSEPH,\n\n                For Petitioner  :SRI.T.KRISHNAN UNNI (SR.)\n\n                For Respondent  :SRI.TOM JOSE (PADINJAREKARA)\n\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :23\/03\/2010\n\n O R D E R\n                         P. BHAVADASAN, J.\n              - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                    W.P.(C). No. 32927 of 2009\n             - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n           Dated this the 23rd day of March, 2010.\n\n                                JUDGMENT\n<\/pre>\n
          Aggrieved by the order dated 12.11.2009 in<\/p>\n
I.A. 1798 of 2009 in O.S. No.227 of 1994, by which the<\/p>\n
trial court allowed an amendment of the written<\/p>\n
statement, the plaintiff in O.S. 227 of 1994 before the<\/p>\n
Sub Court, Pala has come up in appeal.\n<\/p>\n
          2. The petitioner instituted O.S. 227 of 1994,<\/p>\n
which is a suit for declaration and recovery of possession<\/p>\n
on the strength of title, mesne profits and also for<\/p>\n
injunction. The respondents are defendants 2 to 5. The<\/p>\n
first defendant, who was the brother of the petitioner<\/p>\n
died during the pendency of the suit. The respondents<\/p>\n
are his legal heirs.\n<\/p>\n
WPC. 32927\/2009.                2<\/span><\/p>\n
           3. According to the petitioner, the plaint schedule<\/p>\n
property originally belonged to Ouseph, father of the plaintiff<\/p>\n
and the first defendant. He is alleged to have executed a<\/p>\n
will in June, 1979 and the plaint schedule properties, which<\/p>\n
consisted of two items are included in schedule E to the will.<\/p>\n
Ouseph died in 1991. Before his death he had assigned item<\/p>\n
No.1 of the plaint schedule property to the plaintiff. At the<\/p>\n
time of death of Ouseph, it was not available for bequeath.<\/p>\n
As per the terms of the will, item No.2 to the plaint schedule<\/p>\n
was to devolve on the mother of the plaintiff and the first<\/p>\n
defendant, namely Aley.      Only after the life time of the<\/p>\n
mother, property was to devolve on the legatees. It is the<\/p>\n
case of the petitioners that Aley was given right to alienate<\/p>\n
the property during her lifetime. Consequent on the death<\/p>\n
of Ouseph, Aley took possession as per the terms of the will.<\/p>\n
She is said to have assigned item No.2 to the petitioner.<\/p>\n
Thereby, petitioner became the absolute owner of both<\/p>\n
items 1 and 2 to the plaint. It is claimed that defendants 2<\/p>\n
to 4 were allowed to reside in the house by the plaintiff.<\/p>\n
WPC. 32927\/2009.                3<\/span><\/p>\n
After the death of his mother, he wanted them to vacate.<\/p>\n
They did not do so. That necessitated the suit.<\/p>\n
           4. Defendants 2 to 5 contested the suit. They<\/p>\n
assailed the assignment of item No.1 in favour of the<\/p>\n
plaintiff. As regards item No.2, their contention was that the<\/p>\n
right of the mother was confined to life estate and therefore<\/p>\n
she could not assign the property to the plaintiff.        They<\/p>\n
therefore contended that the claim of the plaintiff that he<\/p>\n
had absolute rights over plaint items 1 and 2 cannot be<\/p>\n
accepted.\n<\/p>\n
           5. It appears that parallel letters of administration<\/p>\n
proceedings were initiated before the District Court,<\/p>\n
Kottayam with respect to the will. Based on the findings in<\/p>\n
the L.A.O.P., the trial court found that the assignments in<\/p>\n
favour of the plaintiff are valid, and the suit was decreed.<\/p>\n
           6. The matter was carried in appeal as A.S. 52 of<\/p>\n
1999 by the defendants. That was taken up along with the<\/p>\n
appeal from L.A.O.P., MFA 1276 of 1997. On a consideration<\/p>\n
of the materials before it, this court came to the conclusion<\/p>\n
WPC. 32927\/2009.                4<\/span><\/p>\n
that the trial court was not justified in coming to the finding<\/p>\n
as it did solely based on the findings in L.A.O.P. proceedings.<\/p>\n
This court was of the opinion that an independent evaluation<\/p>\n
of the evidence and an independent enquiry ought to have<\/p>\n
been conducted by the court below while deciding the issues<\/p>\n
involved in the suit and remanded the case. Ext.P1 is the<\/p>\n
said judgment.\n<\/p>\n
           7. After remand, it is said that the suit came up<\/p>\n
for trial and the period fixed by this court had already<\/p>\n
expired. It was included in the list for trial on 16.11.2009.<\/p>\n
On 9.11.2009 the defendants           said to have filed an<\/p>\n
amendment         application   of   the   written   statement<\/p>\n
incorporating new pleas including one of non-joinder of<\/p>\n
necessary parties as per I.A. 1798 of 2009. Copy of the said<\/p>\n
petition is produced as Ext.P2. That was opposed by the<\/p>\n
petitioner. But overruling the objections of the petitioner,<\/p>\n
the amendment application was allowed and the order is<\/p>\n
produced as Ext.P3. The said order is under challenge.<\/p>\n
WPC. 32927\/2009.              5<\/span><\/p>\n
           8. Learned counsel appearing for the petitioner<\/p>\n
pointed out that the court below was not justified in allowing<\/p>\n
the amendment and it fell outside the scope of the remand<\/p>\n
order by this court. It was also pointed out that the court<\/p>\n
below has omitted to note the proviso to Order VI Rule 17 of<\/p>\n
the Code. The further contention was that the court below<\/p>\n
ought to have noticed that new matters are sought to be<\/p>\n
brought in by way of amendment, which is impermissible in<\/p>\n
law. An amendment is sought for incorporating a plea of<\/p>\n
non-joinder of necessary parties, which was to be taken at<\/p>\n
the earliest stage. This according to learned counsel is not<\/p>\n
warranted in law.\n<\/p>\n
           9. Learned counsel appearing for the respondents<\/p>\n
on the other hand pointed out that the amendments are only<\/p>\n
clarifications or explanations or giving of particulars of the<\/p>\n
pleas already available in the written statement and that<\/p>\n
does not constitute any new plea. The amendment sought<\/p>\n
for are     with reference to the will which was already<\/p>\n
available in the first instance.   Further amendment was<\/p>\n
WPC. 32927\/2009.               6<\/span><\/p>\n
sought for on the basis of Ext.A4 document, which was<\/p>\n
produced by the plaintiff herself.         Therefore it was<\/p>\n
contended that the socalled amendment cannot be said to<\/p>\n
have taken by surprise nor she is justified in saying that she<\/p>\n
is   prejudiced by the order allowing amendment of the<\/p>\n
written statement.\n<\/p>\n
           10. Copy of the amendment application made<\/p>\n
available to this court shows that the amendment sought for<\/p>\n
were with reference to Ext.A4 produced by the plaintiff<\/p>\n
herself. It is true that this court had fixed a time limit for<\/p>\n
disposal of the suit. The amendments sought for under the<\/p>\n
documents said to have been executed by the father of the<\/p>\n
petitioner in favour of the petitioner is not valid in law.<\/p>\n
Annexure A4 letter shows the real state of affairs, and that<\/p>\n
shows the state of health of the assignor at the time of<\/p>\n
executing the document. Then the said amendment sought<\/p>\n
for is with reference to the assignment made by the mother.<\/p>\n
Yet another amendment is to the effect that improvements<\/p>\n
WPC. 32927\/2009.               7<\/span><\/p>\n
have been made in the property by the first defendant. Of<\/p>\n
course there is also a plea of non-joinder of necessary<\/p>\n
parties.\n<\/p>\n
           11. Before going further into the issues, it may be<\/p>\n
useful to refer to the order of remand made by this court.<\/p>\n
The relevant paragraph is paragraph 31.         The following<\/p>\n
paragraph is also relevant in this context:<\/p>\n
                “Since the matter is remitted to the<\/p>\n
     court below, and the judgment and decree is set<\/p>\n
     aside, the court below will consider the question<\/p>\n
     afresh, including the question of mesne profits.”<\/p>\n
           12. Order VI rule 17 of the CPC reads as follows:<\/p>\n
     “17.     Amendment of pleadings.-        The Court<\/p>\n
     may at any stage of the proceedings allow either<\/p>\n
     party to alter or amend his pleadings in such<\/p>\n
     manner and on such terms as may be just, and all<\/p>\n
     such amendments shall be made as may be<\/p>\n
     necessary for the purpose of determining the real<\/p>\n
     questions in controversy between the parties:<\/p>\n
WPC. 32927\/2009.               8<\/span><\/p>\n<\/blockquote>\n
           Provided that no application for amendment<\/p>\n
     shall be allowed after the trial has commenced,<\/p>\n
     unless the Court comes to the conclusion that in<\/p>\n
     spite of due diligence, the party could not have<\/p>\n
     raised the matter before the commencement of<\/p>\n
     trial.”\n<\/p><\/blockquote>\n
The contention taken is that there is no finding by the court<\/p>\n
that the pleadings now taken by the defendants in the<\/p>\n
written statement could not have been raised by them even<\/p>\n
after due diligence at the earlier stage. According to learned<\/p>\n
counsel the amendment of the written statement is a matter<\/p>\n
of course and circumscribed by the Code. After the recent<\/p>\n
amendment of the CPC, the provisions have become very<\/p>\n
stringent. According to learned counsel the court below has<\/p>\n
not properly applied the proviso to the issue on hand.<\/p>\n
           13.   In reply, the learned counsel for the<\/p>\n
respondents pointed out that no new grounds are sought to<\/p>\n
be introduced in the written statement and the nature of<\/p>\n
the amendments which are sought for are only explanatory<\/p>\n
WPC. 32927\/2009.              9<\/span><\/p>\n
in nature. None of the amendments sought for introduced a<\/p>\n
new plea or defence and therefore the petitioner cannot<\/p>\n
have any grievance.\n<\/p>\n
           14. The principles regarding the amendment of<\/p>\n
pleadings are well settled. By now it is well established that<\/p>\n
if the court concerned finds that the amendment is<\/p>\n
necessary to avoid multiplicity of     suit or for effective<\/p>\n
adjudication of the suit and the issues involved in the suit,<\/p>\n
even though the amendment sought for is belated, that<\/p>\n
should be allowed. It has also been     held that any injury<\/p>\n
that may be caused can be compensated by awarding costs.<\/p>\n
           15. In the case on hand there is nothing to show<\/p>\n
that except the amendment sought for with reference to the<\/p>\n
non-joinder of necessary parties, the other amendments<\/p>\n
introduced any new pleading. True, there is a claim that<\/p>\n
improvements in the property have been made by the first<\/p>\n
respondent. But one has to notice that the claim of the first<\/p>\n
respondent is that he is in possession of the property and<\/p>\n
the document executed in favour of the plaintiff       by her<\/p>\n
WPC. 32927\/2009.               10<\/span><\/p>\n
parents are invalid in law. It could not be said that any new<\/p>\n
material is introduced. It is only explanatory in nature as<\/p>\n
rightly pointed out by the learned counsel for the<\/p>\n
respondents.\n<\/p>\n
           16. But the matter stands on a different footing as<\/p>\n
far as the plea of non-joinder is concerned. That was a plea<\/p>\n
which was available to the first defendant at the first stage<\/p>\n
and there were no reasons given as to why he has not taken<\/p>\n
that plea at the initial stage. If the finding goes in favour of<\/p>\n
the first defendant, that will cause considerable prejudice to<\/p>\n
the plaintiff in maintaining the suit.\n<\/p>\n
           17. In the decision reported in Ragu Thilak D.<\/p>\n
John v. S. Rayappan<\/a> ((2001) 2 SCC 472) it was held as<\/p>\n
follows:\n<\/p>\n
           “In view of the subsequent developments,<\/p>\n
     the appellant filed an application under Order 6<\/p>\n
     Rule 17 for the amendment of the plaint for<\/p>\n
     adding paras 8(a) to 8(f) in his plaint. The trial<\/p>\n
     court rejected his prayer and the revision petition<\/p>\n
     filed against that order was dismissed by the High<\/p>\n
WPC. 32927\/2009.                  11<\/span><\/p>\n
     Court vide order impugned in this appeal, mainly<\/p>\n
     on the ground that the amendment, if allowed,<\/p>\n
     would result in introducing a new case and cause<\/p>\n
     of action. It was further held that as the appellant<\/p>\n
     was      seeking     recovery      of    damages,     the<\/p>\n
     amendment could not be allowed as it would<\/p>\n
     allegedly change the nature of the suit. It was<\/p>\n
     also observed that the amendment sought was<\/p>\n
     barred by limitation.\n<\/p><\/blockquote>\n
           After referring to the judgments in Charan<\/p>\n
     Das v. Amir Khan, L.J. Leach &Co. Ltd. v. Jardine<\/p>\n
     Skinner & Co., Ganga Bai v. Vijay Kumar, Ganesh<\/p>\n
     Trading Co. v. Moji Ram and<\/a> various other<\/p>\n
     authorities, this Court in B.K. Narayana Pillai v.<\/p>\n
     Parameswaran Pillai<\/a> held:\n<\/p><\/blockquote>\n
           “3. The purpose and objection of Order6 rule 17 CPC<\/p>\n
     is to allow either party to alter or amend his pleadings in<\/p>\n
     such manner and on such terms as may be just.          The<\/p>\n
     power to allow the amendment is wide and can be<\/p>\n
     exercised at any stage of the proceedings in the interests<\/p>\n
     of justice on the basis of guidelines laid down by various<\/p>\n
     High Courts and this Court. It is true that the amendment<\/p>\n
     cannot be claimed as a matter of right and under all<\/p>\n
     circumstances. But it is equally true that the courts while<\/p>\n
     deciding such prayers should not adopt a hypertechnical<\/p>\n
     approach.   Liberal approach should be the general rule<\/p>\n
     particularly in cases where the other side can be<\/p>\n
WPC. 32927\/2009.                     12<\/span><\/p>\n
     compensated with the costs. Technicalities of law should<\/p>\n
     not   be   permitted    to    hamper     the courts in  the<\/p>\n
     administration    of    justice      between  the   parties.<\/p>\n
     Amendments are allowed in the pleadings to avoid<\/p>\n
     uncalled-for multiplicity of litigation.”<\/p>\n<\/blockquote>\n
           18. In the decision reported in Baldev Singh v.<\/p>\n
Manohar Singh (2006(3) KLT 953(SC))the approach that<\/p>\n
the courts should make in deciding an application for<\/p>\n
amendment was emphasized. In that decision the court held<\/p>\n
as follows:\n<\/p>\n
                “Keeping this principle in mind, let us<\/p>\n
     now      consider      the       provisions   relating   to<\/p>\n
     amendment of pleadings. O.6 R.17 of the ode of<\/p>\n
     Civil    Procedure      deals      with    amendment     of<\/p>\n
     pleadings which provides that the Court may at<\/p>\n
     any stage of the proceedings allow either party to<\/p>\n
     alter or amend his pleadings in such manner and<\/p>\n
     on such terms as may be just, and all such<\/p>\n
     amendments shall be made as may be necessary<\/p>\n
     for the purpose of determining the real questions<\/p>\n
     in controversy between the parties.                A bare<\/p>\n
     perusal of this provision, it is pellucid that O.6<\/p>\n
WPC. 32927\/2009.              13<\/span><\/p>\n
     R.17 of the ode of Civil Procedure consists of two<\/p>\n
     parts. The first part is that the Court may at any<\/p>\n
     stage of the proceedings      allow either party to<\/p>\n
     amend his pleadings and the second part is that<\/p>\n
     such amendment shall be made for the purpose of<\/p>\n
     determining the real controversies raised between<\/p>\n
     the parties. Therefore, in view of the provisions<\/p>\n
     made under O.6 R.17 of the CPC it cannot be<\/p>\n
     doubted     that   wide   power   and   unfettered<\/p>\n
     discretion has been conferred on the Court to<\/p>\n
     allow amendment of the pleadings to a party in<\/p>\n
     such manner and on such terms as it appears to<\/p>\n
     the Court just and proper. While dealing with the<\/p>\n
     prayer for amendment , it would also be<\/p>\n
     necessary to keep in mind that the Court shall<\/p>\n
     allow amendment of pleadings if it finds that delay<\/p>\n
     in disposal of Suit can be avoided and that the suit<\/p>\n
     can be disposed of expeditiously. But the Code of<\/p>\n
     Civil Procedure (Amendment) Act, 2002 a proviso<\/p>\n
     has been added to Order 6 Rule 17 which restricts<\/p>\n
     the Courts from permitting an amendment to be<\/p>\n
     allowed in the pleadings either of the parties, if at<\/p>\n
     the time of filing an application for amendment,<\/p>\n
     the trial has already commenced. However, Court<\/p>\n
     may allow amendment if it is satisfied that in spite<\/p>\n
WPC. 32927\/2009.             14<\/span><\/p>\n
     of due diligence, the party could not have raised<\/p>\n
     the matter before the commencement of trial. ”<\/p>\n<\/blockquote>\n
           19. In the decision reported in B.K. Narayana<\/p>\n
Pillai v. Parameswaran Pillai<\/a> ((2000) 1 SCC 712) it was<\/p>\n
held as follows:\n<\/p><\/blockquote>\n
           “The mere fact that the appellant had filed<\/p>\n
     the application after a prolonged delay could not<\/p>\n
     be made a ground for rejecting his prayer<\/p>\n
     particularly when the respondent-plaintiff could be<\/p>\n
     compensated by costs.     the finding of the High<\/p>\n
     Court that the proposed amendment virtually<\/p>\n
     amounted to withdrawal of any admission made<\/p>\n
     by the appellant and that such withdrawal was<\/p>\n
     likely to cause irretrievable prejudice to the<\/p>\n
     respondent is erroneous.\n<\/p><\/blockquote>\n
           The purpose and object of Order 6 Rule<\/p>\n
     17CPC is to allow either party to alter or amend<\/p>\n
     his pleadings in such manner and on such terms<\/p>\n
     as may be just.        The power to allow the<\/p>\n
     amendment is wide and can be exercised at any<\/p>\n
     stage of the proceedings in the interests of justice<\/p>\n
     on the basis of guidelines laid down by various<\/p>\n
     High Courts and the Supreme Court. It is true that<\/p>\n
WPC. 32927\/2009.              15<\/span><\/p>\n
     the amendment cannot be claimed as a matter of<\/p>\n
     right and under all circumstances.         But   it is<\/p>\n
     equally true that the courts while deciding such<\/p>\n
     prayers    should   not  adopt    a    hypertechnical<\/p>\n
     approach. Liberal approach should be the general<\/p>\n
     rule particularly in cases where the other side can<\/p>\n
     be compensated with the costs. Technicalities of<\/p>\n
     law should not be permitted to hamper the courts<\/p>\n
     in the administration of justice between the<\/p>\n
     parties. Amendments are allowed in the pleadings<\/p>\n
     to avoid uncalled-for multiplicity of litigation.<\/p>\n<\/blockquote>\n
           The principles applicable to the amendments<\/p>\n
     of the plaint are equally applicable to the<\/p>\n
     amendments of the written statements.             The<\/p>\n
     courts are more generous in allowing the<\/p>\n
     amendment of the written statement as the<\/p>\n
     question of prejudice is less likely to operate in<\/p>\n
     that event. The defendant has a right to take<\/p>\n
     alternative plea in defence which, however, is<\/p>\n
     subject to an exception that by the proposed<\/p>\n
     amendment      the other    side   should not be<\/p>\n
     subjected to injustice and that any admission<\/p>\n
     made in favour of the plaintiff is not withdrawn.<\/p>\n
     All amendments of the pleadings should be<\/p>\n
     allowed which are necessary for determination of<\/p>\n
WPC. 32927\/2009.                16<\/span><\/p>\n
     the real controversies in the suit provided the<\/p>\n
     proposed amendment does not alter or substitute<\/p>\n
     a new cause of action on the basis of which the<\/p>\n
     original   lis was    raised   or   defence   taken.<\/p>\n
     Inconsistent and contradictory allegations in<\/p>\n
     negation to the admitted position of facts or<\/p>\n
     mutually destructive allegations of facts should<\/p>\n
     not be allowed to be incorporated by means of<\/p>\n
     amendment to the pleadings.”<\/p><\/blockquote>\n<\/blockquote>\n
\n<\/blockquote>\n
           19. In the light of the principles above mentioned,<\/p>\n
the amendment now sought for by the defence do not<\/p>\n
militate against any of the principles so laid down by the<\/p>\n
apex court.     No prejudice whatsoever is caused to the<\/p>\n
plaintiff by the amendment sought to be incorporated by the<\/p>\n
defendants except the one relating to non-joinder. That as<\/p>\n
already stated stands on a different footing.<\/p><\/blockquote>\n
WPC. 32927\/2009.              17<\/span><\/p>\n
           In the result, this petition is partly allowed and<\/p>\n
that portion of the order in I.A.1798 of 2009, which permits<\/p>\n
amendment of the written statement incorporating the plea<\/p>\n
of non-joinder of necessary parties is quashed and the rest<\/p>\n
of the order is maintained.\n<\/p>\n<\/p>\n
                                           P. BHAVADASAN,
\n                                                JUDGE<\/p>\n
sb.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Rosamma vs Kunjunjamma on 23 March, 2010 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.) 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