Kerala High Court
Lakshmi vs Yatheendradas on 6 January, 2020
Author: Devan Ramachandran
Bench: Devan Ramachandran
-CR-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941
FAO (RO).No.43 OF 2018
AGAINST THE JUDGMENT IN AS 177/2012 DATED 09-10-2017 OF DISTRICT COURT,
PALAKKAD
AGAINST THE JUDGMENT IN OS 6/2009 DATED 03-07-2012 OF MUNSIFF COURT, ALATHUR
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 LAKSHMI
AGED 60 YEARS, W/O.LATE VELAYUDHAN, NARIPOTTA, KUNISSERI,
PALAKKAD.
2 DEVI
AGED 45 YEARS, D/O.KASU, KARIPPAMKADU, CHENGARAM, KUNISSERI,
PALAKKAD.
3 MOHANAN
AGED 50 YEARS, S/O.KASU, KARIPPAMKADU, CHENGARAM, KUNISSERI,
PALAKKAD.
4 SURENDRAN
AGED 45 YEARS, S/O.BALAN, PULLAMPADAM, VANDAZHI, ALATHUR,
PALAKKAD.
5 KANAKADAS
AGED 37 YEARS, S/O.RAJAN, CHORAMKULAM, CHITTILENCHERRY,
ALATHUR, PALAKKAD.
6 SIVAPRASAD
AGED 42 YEARS, S/O.RAJAN, PULIKKATTIL, KATTUSSERI, ALATHUR,
PALAKKAD.
BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENTS/APPELLANTS & SUPPLEMENTAL APPELLANTS NOS.4, 5 & PLAINTIFFS:
1 YATHEENDRADAS
AGED 60 YEARS, S/O.LATE K.P.PRABHAKARAN, MANIANKODE KALAM,
MANNUR, PALAKKAD.
2 BHAGYANATHAN
AGED 55 YEARS, S/O.LATE K.P.PRABHAKARAN, MANIANKODE KALAM,
MANNUR, PALAKKAD.
3 K.RADHAKRISHNAN
AGED 71 YEARS, S/O.LATE YESODHA, PALLIKANDATHU HOUSE,
KADUMTHIRUTHY, KANNADI, PALAKKAD.
FAO (RO).No.43 OF 2018
2
4 SASIDHARAN
AGED 69 YEARS, S/O.LATE YESODHA, PALLIKANDATHU HOUSE,
KADUMTHIRUTHY, KANNADI, PALAKKAD.
R1-4 BY ADV. SRI.LIJU. M.P
R1-4 BY ADV. SRI.SAJAN VARGHEESE K.
R1-4 BY ADV. SRI.ABE RAJAN
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY
HEARD ON 06.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO (RO).No.43 OF 2018
3
C.R
JUDGMENT
The singular aspect on which this appeal pirouettes is if an Appellate Court can permit amendments to pleadings at the stage of appeal, in the face of the introduction of the proviso to Order VI Rule 17 of the Code of Civil Procedure ("CPC" for brevity hereinafter), through the amendment in the year, 2002.
2. The Appellate Court, in this case, allowed the application for amendment of the plaint and its schedule on the application of the plaintiffs, who had lost the suit; consequently, remanding the matter to the Trial Court for its fresh disposal, based on such amendment.
3. The order of the Appellate Court has been assailed by the defendants in the suit through this FAO, contending for the position that amendment to the pleadings, as now permitted by the Appellate Court, are impermissible after the proviso to Order VI Rule 17 of the CPC had been brought in through the CPC Amendment Act, 2002 (Act 22 of 2002); and wherefore that the order of remand for fresh disposal of the suit is untenable.
4. A quick glance through the most essential facts first FAO (RO).No.43 OF 2018 4 would be necessary.
5. The respondents herein, who are the plaintiffs before the Munsiff's Court, Alathur, filed O.S.No.6/2009 against the defendants/appellants before this Court, under an apprehension that the latter are likely to trespass into the plaint schedule property and thus sought for a decree of perpetual prohibitive injunction against them.
6. For the sake of convenience and ease, I will hereinafter refer to the parties as they are ranked in the Suit.
7. According to the plaintiffs, the plaint schedule property originally belonged to late Sri.K.P.Velu under a partition deed, as per which, portions were set apart for himself and his son Sri.Sankaranarayanan. They say that a ceiling case had, thereafter, been initiated against Late.Sri.K.P.Velu before the Taluk Land Board, Alathur; and that he had surrendered certain extents of his property retaining the balance. They say that Sri.K.P.Velu died in the year 1976 and that during his life time, he had executed a registered Will, bequeathing all his properties in favour of his four daughters. The plaintiffs say that one and two among them are the sons of FAO (RO).No.43 OF 2018 5 one of the daughters of Sri.K.P.Velu, while the 3 rd among them is his elder daughter. They assert that defendants 1 to 3 do not have any rights over the plaint schedule property but are raising untenable claims over it, thus attempting to trespass into it, constraining them to have filed the Suit.
8. The plaintiffs concede that the defendants 1 to 3 are the successors-in-interest of Sri.Velayudhan, who obtained certain portions of the excess land surrendered by late K.P.Velu, through an assignment deed and that the same is situated adjacent to the plaint schedule property. They allege that the attempt of defendants 1 to 3 is to trespass into the plaint schedule property, taking advantage of the fact that it is situated conterminously to theirs and therefore, prayed that the Suit be decreed.
9. The defendants, who are the appellants in this FAO, filed a written statement contending to the contrary and specifically that the description and identity of the plaint schedule property is incorrect and vague. They contended that no such property is in existence and that neither late Sri.K.P.Velu or his family members have any right over the FAO (RO).No.43 OF 2018 6 same after 01.01.1970, because it stood vested with the Government under the provisions of the Land Reforms Act. As regards their title, they contended that the 1 st defendant's husband, late Sri.Velayudhan, had 'kudiyiruppu rights' over 53 cents of property; while late Sri.Kasu, who is the predecessor- in-interest of defendants 2 and 3, had tenancy rights over 52 cents of property lying on the south of late Sri.Velayudhan's holdings.
10. The defendants further say that the afore mentioned Sri.Velayudhan and Sri.Kasu had approached Land Tribunal, Alathur and had obtained assignment of the 'jenmam rights' of their respective areas, as per purchase certificate Nos.3988 and 3987 of 1977 respectively; and that after their death, their legal heirs continued in possession and ownership of these plots. They assert that they have constructed residential houses therein and that the legal heirs of Sri.Velayudhan, namely the 1st defendant and her children, sold their rights in their property to defendants 4 to 6, as per sale deed bearing document No.5772/2008 of the SRO, Alathur, and that they are thus in possession and ownership over it even now. The FAO (RO).No.43 OF 2018 7 defendants allege that the afore two properties have been shown as the plaint schedule property by the plaintiffs, contending that they have no right, interest or possession over any part of the same and that it belongs to them exclusively.
11. The Trial Court framed issues and considered the oral testimonies of PW1, PW2 and DW1; as also documents marked as Exts.A1 to A9, B1 to B4 and C1 to C4 and issued a judgment and decree dismissing the Suit, holding that the plaintiffs have failed to prove the identity of the plaint schedule property or to establish their rights, interest or possession over the same.
12. Challenging this judgment and decree, the plaintiffs filed A.S.No.177/2012 before the District Court, Palakkad and along with the same, they filed I.A.No.1402/2013 seeking amendment of the plaint on the allegation that certain mistakes had inadvertently crept in while describing the plaint schedule property. The Appellate Court considered this I.A and held that, since the amendments sought for by the plaintiffs go to the root of the controversy in question, they are deserving to be allowed and then remanded the matter to the Trial Court for FAO (RO).No.43 OF 2018 8 fresh disposal.
13. It is this order of the First Appellate Court which has been challenged by the defendants before this Court.
14. I have heard Sri.Johnson Varikkappallil, learned counsel appearing for the appellants/defendants and Sri.Liju M.P, learned counsel appearing for the respondents/plaintiffs.
15. It is obvious from the judgment of the Trial Court that the contentions of both parties were considered quite in detail, based on the testimony offered by them and the documents marked from their respective sides. The said Court considered Ext.A2 - copy of a Will, said to have been executed by late K.P.Velu in favour of his four daughters and concluded that the same had not been proved as mandated under Section 68 of the Indian Evidence Act. The First Appellate Court did not interfere with this finding, particularly because the original Will had not been produced.
16. As regards the identity of the properties are concerned, I see that the Trial Court had deputed an Advocate Commissioner, who had measured the property with the assistance of the Taluk Surveyor and submitted Exts.C1 and C2 FAO (RO).No.43 OF 2018 9 report and sketch respectively; followed by Ext.C3 report and Ext.C4 survey plan, consequent to an initial remit. The Advocate Commissioner was also called upon, at the instance of the plaintiffs, to measure the property based on Ext.A1 Partition Deed and the Trial Court concluded from the same that the boundaries of the plaint schedule do not tally with the four boundaries of 'A' schedule item in Ext.A1 - Partition Deed. The First Appellate Court has also entered an opinion that the deposition of PW1 does not inspire full confidence and that the boundaries of the property, though measured to be of an extent of 82 cents, are not ascertainable.
17. Pertinently, it is at this stage, that plaintiffs preferred I.A.No.1402/2013, whereby, certain amendments were sought to be made to the specifications of the plaint schedule property and the area shown originally was also sought to be reduced to some extent. Even though this amendment was vehemently opposed by the defendants on the ground that the same grossly varies with the original schedule, and that it would effectively lead to the incorporation of a new schedule, the First Appellate Court allowed it, relying upon FAO (RO).No.43 OF 2018 10 Gopinathan Pillai v. Sumathykutty Amma [2015 (4) KLT 795].
18. The First Appellate Court, as is perspicuous from the impugned order, has concluded that since the amendments are imperative for the purpose of determining the real controversy between the parties, and thus allowed it; however finding that there were lapses on the part of the plaintiffs in not having sought these amendments before the Trial had commenced in the suit. The First Appellate Court thus, consequently, allowed the appeal, setting aside the judgment of the Trial Court and remanded the suit to it for fresh trial and disposal, after permitting the plaintiffs to carry out the amendments in the plaint in terms of I.A.No.1402/2013 filed before it.
19. It is this judgment of the Lower Appellate Court which is assailed before this Court.
20. From a reading of the above narration of facts, afore, it becomes luculent that, going by the original descriptions in the plaint schedule, there are certain admitted inconsistencies with respect to the nature and identity of the property; and FAO (RO).No.43 OF 2018 11 that, therefore, the Trial Court had dismissed the Suit, particularly taking note of the reports and sketches placed on record by the learned Advocate Commissioner.
21. Hence, it is beyond doubt that the plaintiffs were aware of their weaknesses at the time when they filed an appeal before the Lower Appellate Court against the judgment and decree of the Trial Court. It is certainly, therefore, and virtually admitting to the inconsistencies in the original description of the plaint schedule property, that they filed an application under Order VI Rule 17 of the CPC to have the plaint amended, which was then allowed by the Lower Appellate Court.
22. Sri.Johnson Varikkappilly, learned counsel for the appellants, vehemently contended that the Lower Appellate Court ought not to have allowed the amendment for two reasons : (a) that it has acted in conflict with the proviso to Order VI Rule 17 and (b) that by allowing these amendments, a completely new cause of action is projected, thus altering the very nature of the litigation between the parties.
23. When I assess the afore submissions and FAO (RO).No.43 OF 2018 12 contentions, it is without doubt that a learned Judge of this Court in Gopinathan Pillai (supra), has already considered the competence of the Lower Appellate Court to allow amendments to the pleadings, even at the appellate stage, notwithstanding the proviso to Order VI Rule 17 of the CPC. The specific declaration of law is available in paragraph 13 of the said judgment, which reads as under:
"13. For the aforesaid reasons, I am of the view that the court below was not right in holding that the application for amendment of the plaint is liable to be rejected on the ground that no application for amendment shall be allowed after the trial has commenced."
24. As is evident from Gopinathan Pillai (supra), the learned Judge had gone into an exhaustive evaluation as to how the proviso to Order VI Rule 17 would apply and has concluded that a proviso, by its very nature, cannot alter the basic intent of the substantive provision and cannot normally expand it - its proper functioning being to deal with the case, which would otherwise fall within the general knowledge of the main Act. The learned Judge has also concluded that the duty of a Court is to give the proviso, as far as possible, a FAO (RO).No.43 OF 2018 13 restricted meaning so as to bring it within the ambit and purview of the Section; and if a wider and a narrower connotation is possible - the latter bringing it within the purview of the section - then such connotation should be preferred over the wider one.
25. I am in complete affirmation with the views and conclusions of the learned Single Judge in Gopinathan Pillai (supra) and see no reason why I should differ from the same.
26. Apart from the above, even going by the manner in which Order VI Rule 17 is provided, the Court is, at any stage of the proceedings, competent to allow the parties to amend the pleadings, as long as it is necessary for determining the real questions in controversy between them. The proviso, in fact, does not restrict this power in any manner, except to place a reasonable restraint on its exercise, by insisting that such amendments be allowed, after the the trial has commenced, only if the Court comes to a conclusion that in spite of due diligence the party seeking it could not have raised it before the trial began. A reading of Order VI Rule 17 of the CPC in full would make this inevitable, for which FAO (RO).No.43 OF 2018 14 purpose it is reproduced as under:
"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:
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."
27. It is irrefutable from the afore Rule that there is no absolute embargo placed on the Court from entertaining applications for amendment of pleadings even after the trial had begun; but the proviso merely places a qualified restraint in the exercise of such power, which is to obviously to ensure that irrelevant, unnecessary and frivolous amendments are dissuaded. Going by the substantive provision, a Court is empowered to allow amendments at any stage of the proceedings, which certainly construes to mean until the suit is finally decided, as long as they are necessary for the purpose of determining the real questions in controversy between the parties. The proviso does not alter this position at FAO (RO).No.43 OF 2018 15 all, except that it enjoins the Court to exercise a certain degree of circumspection in allowing amendments once the trial had commenced. Hence, when there is absolutely no embargo on the Trial Court in entertaining an application, it is needless to say that such an embargo can never operate against the Appellate Court either.
28. Hence, I am certain that I will be justified in expanding the conclusions in Gopinathan Pillai (supra) to say that, except for the circumspective restraint provided by the proviso - which, in any case, is not an embargo - the power of a Court, be that the Trial Court or Lower Appellate Court, to entertain an application for amendment cannot be said to be not available, merely because the trial had commenced. That being so said, the imperative criterion, inter alia, is that a Court must examine, before allowing an application for amendment after the trial has commenced, whether it is intended to delay or frustrate the suit and if the party seeking such amendment has conducted himself/herself until then diligently, but still could not have sought the amendments before the commencement of the trial.
FAO (RO).No.43 OF 2018 16
29. In this case, the Lower Appellate Court has found that the amendment now sought by the plaintiffs are absolutely necessary for the parties to determine the real controversy between them, because the properties involved remain as a contiguous plot, without the boundaries between them being identified, as is evident from Exhibit C3 report of the learned Advocate Commissioner. It is also without any doubt that the suit had been dismissed by the Trial Court solely because the plaint schedule property did not tally with A schedule in Exhibit A1 partition deed and on account of 'an apparent inconsistency in the property description in the plaint schedule, particularly regarding its four boundaries from that in Exhibit A1 partition deed, which is grossly larger in the given case' (sic). I cannot find these conclusions of the Trial Court to be, in any manner, vitiated, since no attempt had been made by the plaintiffs to bring the correct facts to its notice at any time; however, the pertinent question thus being whether the First Appellate Court has erred in allowing the amendments sought for by them at the appellate stage and whether it has found that the plaintiffs had exercised FAO (RO).No.43 OF 2018 17 necessary due diligence but still could not have sought the amendments before the trial had commenced.
30. Even though nothing specific is stated in the impugned judgment by the First Appellate Court on the afore aspect, and even though it has found that 'there is little lapse on their part (plaintiffs) to seek such amendments before the trial court' (sic), it has concluded that without the amendments sought for being allowed, the suit would be rendered purposeless and otiose, particularly when the boundaries of the plaint schedule properties were not able to be identified even by the learned Advocate Commissioner. It is thus that the First Appellate Court has held that 'the lapse on the part of the plaintiffs' cannot be the sole ground disentitling from having the amendments allowed at the appellate stage, since otherwise, the real questions in controversy between the parties cannot be adjudicated or settled.
31. I find substantial justification in the ratiocination of the First Appellate Court and see no reason why it should be disturbed, especially when it does not cause any prejudice FAO (RO).No.43 OF 2018 18 to either side, the Trial Court only having been directed to reconsider the suit based on the amendments.
32. My afore observations would also cover the second contention of the learned counsel for the appellants recorded in paragraph No.22 above, since the amendments now allowed will only help in identification of the plaint schedule properties, but would not change the cause of action or alter the subject matter, since it continues to be the same, except that its boundaries would now stand specified, thus leading to the dispute between the parties to be effectively adjudicated. I, therefore, repel these contentions of the learned counsel for the appellants, finding it to be without merit.
33. The afore having been so concluded, I am also firm in my view that the order of remand by the First Appellate Court cannot be used by any of the parties to protract the suit; and therefore, that a time frame should be fixed, so as to ensure that the same is taken to trial and completed within a specified time frame.
Resultantly and for the reasons above, I dismiss this appeal; and consequentially, direct the Trial Court to dispose of FAO (RO).No.43 OF 2018 19 O.S.No.6/2009 in the manner ordered by the First Appellate Court in A.S.No.177/2012 - after allowing both sides to adduce evidence based on the amendments permitted - as expeditiously as is possible, but not later than six months from the date of receipt/production of a copy of this judgment.
In the face of the peculiar facts and circumstances that are presented in this appeal, I deem it apposite not to make any order as to costs and to thus direct the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN
rp JUDGE