Kerala High Court
Ismail Hajee Essa Trust vs Muslim Educational Society ... on 5 November, 2024
1
OPC 2665/27 and 2478/18
2024:KER:82180
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
OP(C) NO. 2478 OF 2018
AGAINST THE ORDER IN IA.132/2017 IN OS NO.424 OF 2006 OF
ADDITIONAL SUB COURT, IRINJALAKUDA
PETITIONER/S:
1 ISMAIL HAJEE ESSA TRUST
1B, LOTUS APARTMENT, DARBAR HALL ROAD, COCHIN-16, NOW AT
206, GOVIND APARTMENTS, REPRESENTED BY ITS TRUSTEE, ABDUL
SATAR ISMAIL SAIT @ IQBAL SAIT, TIDES, CORREYA ROAD,
PACHALAM, COCHIN-12 NOW RESIDING AT 7 B, INFRA FORESHORE,
FORESHORE ROAD, COCHIN-16.
2 ABDUL SATAR ISMAIL SAIT @ IQBAL SAIT
AGED 72 YEARS,S/O. KHAN SAHIB,ISMAIL HAJEE ESSA
SAIT,PACHALAM, KOCHI-12, NOW RESIDING AT 7B INFRA
FORESHORE,FORESHORE ROAD, COCHIN-16
BY ADVS.S.SREEKUMAR (SR.)
P.MARTIN JOSE
P.PRIJITH
THOMAS P.KURUVILLA
RESPONDENT/S:
1 MUSLIM EDUCATIONAL SOCIETY (REGISTERED)
CALICUT, REPRESENTED BY ITS PRESIDENT, DR.P.A.FAZAL GAFOOR,
61 YEARS, S/O.LATE DR.P.K.ABDUL GAFOOR, PADIYATH HOUSE,
KANNUR ROAD, KOZHIKDOE TALUK, PIN -673051.
2 PRESENT GENERAL SECRETARY,
P.O.J.LABBA,871 YEARS, S/O. YAKKEEN VEETIL UMMER LABBA,
IRAVIPURAM VILLAGE , DESOM, KOLLAM TALUK 691001
3 PRESENT TREASURER,MOIDUTTY, 74 YEARS, S/O. KUNJIMUHAMMED,
NEST HOUSE, KAKKOTH VILLAE, PERINTHALMANNA TALUK 679322
2
OPC 2665/27 and 2478/18
2024:KER:82180
4 ABDUL SALAM
AGED 62 YEARS, S/O. KARUKAPADATH VEDIYIL MUHAMMED,ERIYAD
VILLAGE, KODUNGALLOOR TALUK 680664
5 ABDUL LATHEEF
AGED 72 YEARS, S/O. AYYARIL KUNJUMOIDEEN, LOKAMALESWARAM
VILLAGE, KODUNGALLUR TALUK 680664
6 KUNJUMOIDEEN
AGED 58 YEARS, S/O.KARUKAPADATH VEDIYI ABDUL KAREEM,ERIYAD
VILLAGE, KODUNGALLOOR TALUK 680664
7 SIYAVUDEEN AHAMED
AGED 62 YEARS, S/O. PADIYATH MANAPPATT HYDROSE,
LOKAMALESWARAM VILLAGE, KODUNGALLOOR TALUK 680664
BY ADVS.
SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SRI.K.M.FAISAL (KALAMASSERY)
SRI.P.U.VINOD KUMAR
SMT.AMRIN FATHIMA
SMT.V.R.LAKSHMI
SRI.AVINASH P RAVEENDRAN
SRI.J.VISHNU DEVARAJ
SRI.K.K.CHANDRAN PILLAI (SR.)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.10.2018, THE
COURT, ALONG WITH OP(C).2665/2017, TODAY DELIVERED THE FOLLOWING:
3
OPC 2665/27 and 2478/18
2024:KER:82180
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
OP(C) NO. 2665 OF 2017
AGAINST THE ORDERIN IA.1509 OF 2017 IN OS NO.424 OF 2006 OF
ADDITIONAL SUB COURT, IRINJALAKUDA
PETITIONER/S:
1 MUSLIM EDUCATIONAL SOCIETY,
REPRESENTED BY ITS PRESIDENT,DR.P.A.FAZAL GAFOOR,AGED 58
YEARS,S/O.LATE DR.P.K.ABDUL GAFOOR,PADIYATH HOUSE,KANNUR
ROAD,KOZHIKODE.`
2 PRESENT GENERAL SECRETARY.P.O.J.LABBA
AGED 81 YEARS,S/O.YAKKEEM VEETTIL LABBA,IRAVIPURAM
DESOM/VILLAGE,KOLLAM TALUK.
3 PRESENT TREASURER MOIDUTTY
AGED 74 YEARS,S/O.KUNJIMUHAMMED,NEST HOUSE,KAKKOTH
VILLAGE,PERINTHALMANNA TALUK.
4 ABDUL SALAM, AGED 62 YEARS,S/O.KARUKAPADATH VEDIYIL
MUHAMMED,ERIYAD VILLAGE,KODUNGALLUR TALUK.
5 ABDU LATHEEF, AGED 72 YEARS,S/O.KARUKAPADATH VEDIYIL ABDUL
KAREEM,ERIYAD VILLAGE,KODUNGALLUR TALUK.
6 KUNJUMOIDEEN, AGED 58 YEARS
S/O.KARUKAPADATH VEDIYIL ABDUL KAREEM,ERIYAD
VILLAGE,KODUNGALLUR TALUK.
7 SIYAVUDEEN AHAMED
AGED 62 YEARS,S/O.PADIYATH MANAPATT HYDHROSE,LOKAMALESWARAM
VILLAGE,KODUNGALLUR TALUK.
BY ADVS.
SRI.BABU KARUKAPADATH
SRI.K.K.CHANDRAN PILLAI (SR.)
4
OPC 2665/27 and 2478/18
2024:KER:82180
SMT.AMRIN FATHIMA
SRI.MITHUN BABY JOHN
SRI.J.RAMKUMAR
SMT.M.A.VAHEEDA BABU
SRI.P.U.VINOD KUMAR
RESPONDENTS:
1 ISMAIL HAJEE ESSA TRUST
IB LOTUS APARTMENTS,DURBAR HALL ROAD,COCHIN-16,NOW AT
206,GOVIND APARTMENT,KALATHIPARAMBIL ROAD,COCHIN-16,REP.BY
ITS TRUSTEE ABDUL SATAR ISMAIL SAIT @ IQBAL SAIT
TIDES,CORREYA ROAD,PACHALAM,KOCHI-12.
2 ABDUL SATHAR ISMAIL SAIT IQBAL SAIT
AGED 72 YEARS,S/O.KHAN SAHIB,ISMAIL HAJEE EASSA
SAIT,PACHALAM,KOCHI-12,NOW RESIDING AT 7B,INFRA FORESHORE
ROAD,COCHIN-16.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.8.2017, THE
COURT, ALONG WITH OP(C).2478/2018, TODAY DELIVERED THE FOLLOWING:
5
OPC 2665/27 and 2478/18
2024:KER:82180
JUDGMENT
(OPC 2665/27 and 2478/18) (Dated this the 5th day of November 2024) Both these original petitions arise from interim orders in O.S.No.424 of 2006 on the files of Additional Sub Court, Irinjalakuda. O.P.(C) No.2478 of 2018 arise from I.A.No. 132 of 2017, which is an application filed under Order VI Rule 17 CPC to amend the written statement. The said application was allowed, and the same is challenged in this Original Petition. O.P.(C) No.2665 of 2017 is filed against the order I.A.No. 1509 of 2017, whereby the application filed by the plaintiff to amend the plaint was allowed. Since the order under challenge arise from the same suit, these Original Petitions are heard together and disposed of by a common judgment.
2. The facts in brief are as follows:
O.P.(C) No.2478 of 2018:The petitioners are the plaintiffs in 6 OPC 2665/27 and 2478/18 2024:KER:82180 the suit, O.S.No. 424 of 2006, which was initially filed for a declaration that the plaint schedule properties and the Asmabi College, school, hostel, etc., situated in the properties are in the absolute ownership and possession of the 1st plaintiff Trust and that the 1st plaintiff Trust has the right of management over the same. The 2nd prayer is to issue a permanent prohibitory injunction against the defendants and their men from trespassing into the plaint schedule properties and from interfering with the possession and management of the educational institutions, hostel and other buildings in the plaint schedule properties or from in any manner interfering with the management and enjoyment of the aforesaid properties and institutions therein.
3. A written statement was filed by the defendants on 11.1.2002. The plaintiffs filed an application for an amendment as I.A.No.3363 of 2002, which was allowed by the learned Sub 7 OPC 2665/27 and 2478/18 2024:KER:82180 Judge, and the amendments were carried out. After trial, the suit was dismissed by Judgment and Decree dated 30.6.2007. The plaintiffs filed R.F.A.No.329 of 2008 before this court, and by judgment dated 21.2.2017, the appeal was allowed, and the trial court's findings were set aside. The suit was remanded for de novo trial, permitting the parties to adduce further evidence. The defendants took up the matter before the Hon'ble Supreme Court by S.L.P.(C) No.14275 of 2017, and the apex court disposed of the S.L.P., directing the trial court to dispose of the suit without being influenced by the observations and findings recorded by this Court. It was clarified that the trial Judge has to treat it as an open remand. Meanwhile, the defendants filed I.A. No.132 of 2017 to amend the written statement by incorporating two paragraphs as 2A, 2B and 2C and deleting certain words from various paragraphs. Ext.P7 is the application. The plaintiffs filed 8 OPC 2665/27 and 2478/18 2024:KER:82180 an objection on 13.6.2018 to the amendment petition as Ext.P8. The learned Additional Sub Judge, by Ext.P9 order, allowed the application on condition of payment of cost of Rs.5,000/- to plaintiffs and Rs.5,000/- towards the District Legal Services Authority. The plaintiffs challenge Ext.P9 in this Original Petition.
4. O.P.(C) No.2665 of 2017: As the facts of the case from the filing of the plaint till the filing of S.L.P. before the apex court, are the same as in facts of O.P.(C) No.2478 of 2018, the same are not reiterated here. After the disposal of the S.L.P. by the Supreme Court on 8.5.2017 and the matter was remanded to the trial court, the plaintiff filed an amendment application as I.A. No.1509 of 2017 (Ext.P6), to substitute certain words and to incorporate a new relief which is in the nature of mandatory injunction and also to change the valuation portion. The 9 OPC 2665/27 and 2478/18 2024:KER:82180 defendants filed an objection as Ext.P7. The learned Sub Judge allowed the amendment application as per Ext.P8 order dated 2.8.2017. The petitioners, who are defendants in the I.A. challenge Ext.P8 in this O.P.(C).
5. Heard the senior counsel Sri.S.Sreekumar for the plaintiffs/petitioners Trust and Sri.Babu Karukapadath for the defendants/respondents.
6. The question to be decided in both the Original Petitions is whether the amendment application allowed by the learned Sub Judge as per I.A.No.132 of 2017 and I.A.No. 1509 of 2017 are to be interfered with or not.
7. Regarding O.P.(C) No. 2478 of 2018, Ext.P9 is the order passed by the learned Sub Judge in an application filed under Order VI Rule 17 CPC to amend the written statement. The suit was filed by Ismail Hajee Essa Trust, represented by its trustees 10 OPC 2665/27 and 2478/18 2024:KER:82180 Abdul Satar Ismail Sait @ Iqbal Sait and Abdul Satar Ismail Sait @ Iqbal Sait. According to the plaintiffs, in the original plaint, the 1st plaintiff Trust was established on 17.3.1968 in the name of the father of the Trustees, the late Khan Sahib Isbal Hajee Essa Trust, with the intention of providing University Education to women of backward communities and more particularly of the Muslim community and for the said purpose, to start a college in the name of the Trustee's mother 'Asmabi'. It is stated that the funds necessary for establishing the college were provided by Sri. Essa Ismail Sait @Babu Sait and the 2nd plaintiff. The properties were purchased with the funds for and on behalf of the Trust, thereby dedicating them to the Trust. The properties were purchased between 1965 and 1966 and are in the ownership of and in the name of the Trust. The pleadings go on to state that the Trust sought affiliation from the Kerala University to start 11 OPC 2665/27 and 2478/18 2024:KER:82180 college, and governing bodies were constituted by the Trust from time to time, appointing prominent persons from the locality. The managing trustee was the president of the governing body, which was constituted from time to time, Sri. Essa Ismail Sait @Babu Sait, and the role of the governing body was to give suitable advice to the Trust for the proper and smooth functioning of the college. Earlier, the governing body used to get opinions from one Dr.Gafoor, a family friend of the managing trustee. He was the erstwhile president of the Muslim Educational Society, which rendered necessary assistance and cooperation to the Trust to run the educational institutions belonging to the Trust.
8. While so, governing body members, who had a close relationship with the Muslim Educational Society, started conducting themselves contrary to the interest of the Trust and its officers. Therefore, the governing body was dissolved, and a fresh 12 OPC 2665/27 and 2478/18 2024:KER:82180 governing body was formed with new persons. Thereafter, a notice was issued to the earlier governing body members to hand over the minutes book and other records to the new governing body members. However without doing so they have caused a letter to be issued through Muslim Educational Society containing false allegations and statements. The land on which the building is situated is under the absolute control of the Trust, and no other person has any manner of right over any of the properties. The suit was laid for a declaration and injunction in such a situation.
9. It is to be noted that in the written statement filed to the original plaint, in paragraph No.3, it is stated that the Trust purchased the land in question with the idea of establishing a junior college but denied the fact that the Managing Committee and the 2nd plaintiff provided the amounts for the purchase of the 13 OPC 2665/27 and 2478/18 2024:KER:82180 buildings. It is admitted in the written statement that the Trust, with the intention of establishing a junior college, started construction of a building in the plaint schedule property, but the same could not be completed due to lack of funds and less experience and expertise to run a college. When the construction of the building was stand still and trustees lost the hope in starting the college, the land and incomplete building with all improvements, were gifted to M.E.S. and handed over to them in 1967. The gift was of an oral gift, which is permissible under Mohammedan law; therefore, no gift deed was executed or registered. The gift is complete and irrevocable. Afterwards, M.E.S. completed the construction of the building using their funds and obtained provisional affiliation from Kerala University.
10. It is also contended that the plaintiff Trust was never in ownership of MES College and that the plaintiff Trust had not 14 OPC 2665/27 and 2478/18 2024:KER:82180 never constituted any governing body for M.E.S. Asmabi College. The 1st plaintiff Trust has never sought or obtained any guidance or assistance from M.E.S. for running the college. So, the main contention raised is that though the 1st plaintiff Trust purchased the property in their name and started construction of the buildings because of lack of experience and funds, the same was gifted to M.E.S. through an oral mode. The trial court, after a detailed trial, dismissed the suit, holding that there was a valid oral gift made by the 1st plaintiff to the 1st defendant. The appeal filed by the plaintiffs as R.F.A.No.329 of 2008 before this Court was allowed by this Court as per Ext.P5 judgment dated 21.2.2017, holding that since the 1st plaintiff is a Trust represented by the Managing Trustee, a public trust cannot transfer the property by an oral gift to a society merely because of its members are governed by Mohammedan Law as the Trust and Society is 15 OPC 2665/27 and 2478/18 2024:KER:82180 an independent juristic legal entity who are bound by Section 123 of Transfer of Property Act, 1882 in the matter of gift. But when the matter was taken before the hon'ble apex court, on a consensus made at the Bar, the suit was directed to be disposed of uninfluenced by the observations and findings recorded in the judgment in the R.F.A.
11. After remand, when the trial was about to commence, the defendants filed the present amendment application I.A.No.132 of 2017, as per Ext.P7. The written statement is sought to be amended by deleting the words 'the Trust' appearing in the various paragraphs of the Original written statement and substituting the same with the word 'Essa Ismail Sait @ Babu Sait'. Paragraphs Nos.2A to 2C are also sought to be incorporated. A whole reading of Ext.P7 would show that what is intended by the amendment is to put forward a case in the 16 OPC 2665/27 and 2478/18 2024:KER:82180 written statement that the property does not belong to the 1st plaintiff and it belongs exclusively to Essa Ismail Sait @ Babu Sait and the oral gift is made by Essa Ismail Sait @ Babu Sait in the name of the 1st defendant and therefore, to contend that under Mohammedan law, oral gift is permissible and thus, the 1st defendant has become the absolute owners in possession of the land and the buildings of the 1st plaintiff.
12. The senior counsel, Sri.S.Sreekumar for the plaintiffs, argued that by allowing the amendment application, the defendants are now allowed to take away the admission in the original written statement regarding the existence of a Trust and the properties and the buildings belonging to the 1st plaintiff Trust. Categoric admissions were made in various paragraphs of the written statement that the building was in existence and that the property belonged to the Trust. But by the said amendment, a 17 OPC 2665/27 and 2478/18 2024:KER:82180 totally new case is projected as if there is no Trust in existence and the property and the building belong exclusively to Essa Ismail Sait @ Babu Sait; thereby, the oral gift is sought to be proved. This is an afterthought, after they had suffered the judgment in R.F.A. confirmed by the judgment of the apex court, wherein there was a clear finding by this court that 1st plaintiff Trust cannot transfer a property by an oral gift to a society as a Trust under society is an independent juristic legal entity. If the amendment is allowed, serious prejudice will be caused to the plaintiffs, and the admissions in the original written statement will be taken away, which is impermissible in law. The senior counsel relied on the judgment of the apex court in Ram Niranjan Kajaria v. Sheo Prakash Kajaria [(2015) 10 SCC 203] and Gautam Sarup v. Leela Jetlley (2008 KHC 4481) to contend that admission made in pleadings cannot be permitted to be 18 OPC 2665/27 and 2478/18 2024:KER:82180 withdrawn by amendment but it can be done by explaining or clarifying the admissions. In this case, the admission that the property belonging to the Trust is sought to be taken away, and a new case is to be incorporated that the properties and buildings belong to a private individual.
13. The counsel for the respondents, Sri.Babu Karukapadath argued that when the matter reached the apex court, the apex court had, in fact, remanded the matter to the trial Judge to dispose of the suit uninfluenced by the observations and findings recorded by the High court and to treat it as an open remand. Therefore, any finding entered by this court is negatived or nullified, and the suit is to be disposed of afresh. The amendment sought through Ext.P7 is highly necessary for the effective and proper adjudication of the controversy between the parties, and no prejudice or injustice will be caused to the plaintiffs if the 19 OPC 2665/27 and 2478/18 2024:KER:82180 amendment is allowed. Through the amendment, no fresh pleadings are brought into, and it is only a clarificatory or explaining the fact that though it is stated that the properties belong to the Trust, later it came to the knowledge of the defendants that, in fact, there was no Trust and the properties belong exclusively to Essa Ismail Sait @ Babu Sait and therefore, the amendment has now been filed as it has become necessary to amend the written statement for proper adjudication of the suit. The defendants never admitted in the written statement that a Trust existed as the 1st plaintiff. He relied on judgments of the apex court in Sushil Kumar Jain v. Manoj Kumar (AIR 2009 SC 2544), Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary [1995 Supp. (3) SCC 179], Avtar Singh v. Gurdial Singh [(2006) 12 SCC 552], Kunhaliumma v. Rabiumma [1997 (2) KLT 936] as well as Chakreshwari Construction Pvt. 20 OPC 2665/27 and 2478/18
2024:KER:82180 Ltd., v. Manohar Lal [(2017) 5 SCC 212].
14. The specific case of the plaintiffs is that the 1st plaintiff's Trust was formed for the establishment of a college for providing University education to the women of backward communities, especially the Muslim community and funds were raised by Essa Ismail Sait @ Babu Sait and the 2nd plaintiff for purchase of properties in the name of the 1st plaintiff Trust. The 1st plaintiff is the Trust represented by its Trustee. In the written statement, the defendants have admitted in paragraph No.3 as follows:
"The defendants are not aware of the details of the establishment and the constitution of Ismail Haji Eassa Trust. It is true that the Trust purchased the land in question with the idea of establishing a junior college. The statement that with the amounts provided by the Managing Committee and the 2nd plaintiff the building and other amenities for the college were provided in the properties is not true or correct. The real facts are as follows: The Trust, with the intention of establishing junior college, started construction of a building in the plaint schedule property, which they could not complete due to lack of funds. Further they had no experience or expertise to establish and run a college. The 2 nd plaintiff and the Managing Trustee namely Eassa Ismail Sait @ Babu Sait were very young at that time and had no idea as to how 21 OPC 2665/27 and 2478/18 2024:KER:82180 to obtain affiliation for a college and manage it. For several reasons, the construction of the building came to a stand still and the Trustees lost the hope the idea of starting a college. xxx xxxx xx xxx xxxx"
15. Thus, on a reading of the entire written statement, along one side, with the amendment sought to be introduced by Ext.P7, it is clear that wherever the words Trust or Trustees occurred, they are sought to be replaced by the name Essa Ismail Sait @ Babu Sait. In short, the original contention that the 1st plaintiff Trust purchased the land with the idea of establishing a college is sought to be changed as Essa Ismail Sait @ Babu Sait has purchased the land with the idea of establishing a junior college. This was necessitated because of the fact that a Trust cannot transfer immovable property in the name of another society as both are independent juristic legal entities. Thus, it can be seen that the very admission made by the defendants regarding the 22 OPC 2665/27 and 2478/18 2024:KER:82180 existence of the Trust and the purchase of the property and construction of the building by the Trust are sought to be taken away and is to be introduced as a new case which would be prejudicial to the plaintiffs and cause injustice.
16. The Supreme Court in Life Insurance Corporation of India v. Sanjeev Builders Private Limited [(2022) 16 SCC 1)], wherein it was held that all amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as it is apparent from the use of the word 'shall' in the latter part of Order VI Rule 17 CPC. One of the exceptions is that by the amendment, the party seeking the amendment does not seek to withdraw any clear admission made by the party, which confers a right on the other side, and the amendment does not raise a time-barred claim resulting in divesting of the other 23 OPC 2665/27 and 2478/18 2024:KER:82180 side of a valuable accrued right.
17. It is a settled proposition of law that admission will not confer title to a property. But at the same time, when an admission is made regarding the existence of a Trust and the properties are purchased for, and on behalf of the Trust by the present amendment, admission sought to be taken away, cannot be allowed. If the admission is taken away, it will definitely change the entire character of the defence already put forward by the defendants and will definitely prejudice the plaintiffs, who cannot be compensated by cost. The very foundation laid in the written statement is completely changed through the amendment. The learned Sub Judge held that it is open for the defendants to stand even diagonally opposite to what was originally stated in the written statement, but the cause of action is not affected by such amendment in any manner. The court below relied on the 24 OPC 2665/27 and 2478/18 2024:KER:82180 judgment of Kunhaliumma (supra) and allowed the amendment application. The facts in the above case, as well as this case, are entirely different. In Kunhaliumma (supra), the case set up was that the property originally belonged to one Moyi Haji, later it was found that the property did not belong to Moyi Haji, but in fact, it belonged to Mammu Haji. So, the amendment was brought in. This court allowed the amendment to be carried out relying on the proposition of law that admission itself cannot confer title to the property and that the admission of pre-existing title where none in fact existed is not sufficient to create the title. But as far as the facts of this case are concerned, the case set up by the plaintiffs that the property belonged to the Trust was admitted in the written statement, and the contention was that as per oral gift, the Trust gifted the property to the 1st defendant. But by the present amendment, the defence put forward that the Trust 25 OPC 2665/27 and 2478/18 2024:KER:82180 is not in existence and the property belongs to Essa Ismail Sait @ Babu Sait, and he has gifted it orally to the 1st defendant. Therefore, the dictum laid down in Kunhaliumma (supra) cannot be made applicable to the facts of this case. After overall consideration of the facts and circumstances of the case in the plaint, original written statement, the amendment application as well as Ext.P9 order in I.A. No.132 of 2017 allowing the amendment, I am of the considered opinion that there is an improper exercise of jurisdiction vested with it in allowing the amendment application as the very admission made in the original written statement is taken away, which will cause injustice and prejudice to the plaintiffs. Therefore, Ext.P9 has to be set aside.
18. As far as O.P.(C) No.2665 of 2017 is concerned, after remand by the apex court, the plaintiffs have filed an application under Order VI Rules 17 CPC for amending the plaint for substituting certain words and incorporating certain sentences and also a prayer for 26 OPC 2665/27 and 2478/18 2024:KER:82180 mandatory injunction. As per the original plaint, the 1st plaintiff Trust was established in 17.3.1968 and as per the amendment sought, the same is to be changed as '1st plaintiff Trust was formed in the year 1965 by Essa Ismail Sait @ Babu Sait and Abdul Satar Ismail Sait @ Iqbal Sait' and to replace the word 'established' by 'registered'. Another incorporation to be done is after paragraph No.1, 'the suit is pertaining to the 1st plaintiff Trust and the 2nd plaintiff is impleaded as he is a Trustee of the 1st defendant Trust'. In paragraph No.3 in 9th and 10th lines, the words 'are in its absolute possession and control' are to be substituted with the following 'and have been in its possession and control', and the word 'possession' is to be deleted in paragraph No.7. In paragraph 9, 1st sentence, before the word 'possession', the word 'legal' may be inserted and 4th sentence the words 'to or possession' may be deleted. A new relief by way of a mandatory injunction to surrender possession or title deeds pertaining to the 1st defendant Trust including those of plaint schedule properties 27 OPC 2665/27 and 2478/18 2024:KER:82180 and records pertaining to the institutions and buildings in the plaint schedule properties to enable the 1st plaintiff to continue the smooth management of the institutions in the plaint schedule properties without any hindrance. These amendments are not going to change the character of the suit. It is only to give clarity as to the establishment and registration of the Trust that the amendment is sought for. The learned Sub Judge has allowed the application as the amendment is only to incorporate a new relief by way of mandatory injunction, which will not cause prejudice to the respondents, and there are no admissions that are taken away by the said amendments. On going through the amendment application, the objection, and the order passed by the learned Sub Judge, I fully concur with the reasoning stated by the Judge in allowing the amendment application. The amendment sought is highly necessary for the disposal of the suit as it only clarifies the nature of the Trust and how the Trust is coming into effect. Therefore, I do not find any illegality or error of 28 OPC 2665/27 and 2478/18 2024:KER:82180 jurisdiction in passing Ext.P8. Hence, Ext.P8 stands confirmed. The defendants are given four weeks' time to file additional written statement from the date on which the amendment is carried out.
In the result, O.P.(C) No;2665 of 2017 is dismissed, and O.P.(C) No.2478 of 2018 is allowed, and Ext.P9 Order in I.A. No.132 of 2017 in O.S. No.424 of 2006, is set aside. The learned Sub Judge is directed to dispose of the suit as expeditiously as possible as the suit is of the year 2006.
Sd/-
BASANT BALAJI JUDGE dl/ 29 OPC 2665/27 and 2478/18 2024:KER:82180 APPENDIX OF OP(C) 2665/2017 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE ORIGINAL PLAINT IN O.S.424 OF 2006.
EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT ORIGINALLY FILED BY THE DEFENDANTS O.S.424 OF 2016 EXHIBIT P3 A TRUE COPY OF THE AMENDMENT APPLICATION NO.3363/2002.
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 21/02/2017 IN RFA NO.329 OF 2008 OF THIS HON'BLE COURT EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 08/05/2017 OF THE HON'BLE SUPEREME COURT EXHIBIT P6 A TRUE COPY OF THE AMENDMENT APPLICATION I.A.NO.1509 OF 2017 IN O.S.424 OF 2006 ON THE FILE OF HON'BLE SUB COURT,IRINJALAKKUDA.
EXHIBIT P7 A TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.1509 OF 2017 IN O.S.424 OF 2016 ON THE FILE OF HON'BLE SUB COURT,IRINJALAKUDA EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 02.08.2017 IN AMENDMENT APPLICATION NO.1509 OF 2017 IN O.S.NO.424 OF 2006 OF HON'BLE SUB COURT,IRINJALAKUDA.
30OPC 2665/27 and 2478/18
2024:KER:82180 APPENDIX OF OP(C) 2478/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE AMENDED PLAINT IN OS No. 424 OF 2006 ON THE FILES OF SUB COURT, IRINJALAKKUDA EXHIBIT P2 TRUE COPY OF ORIGINAL WRITTEN STATEMENT DATED 11- 01-02 FILED BY THE DEFENDANTS IN OS No. 163 OF 2001 ON THE FILES OF SUB COURT, IRINJALAKUDA EXHIBIT P3 TRUE COPY OF ADDITIONAL WRITTEN STATEMENT DATED 30-10-2003 FILED BY THE DEFENDANTS IN OS No.163 of 2001 ON THE FILES OF SUB COURT, IRINJALAKKUDA EXHIBIT P4 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT DATED 02-01-2006 FILED BY THE 9TH RESPONDENT IN OS No.163 of 2001 ON THE FILES OF SUB COURT, IRINJALAKKUDA EXHIBIT P5 TRUE COPY OF JUDGEMENT IN RFA NO.329 of 2008 DATED 21-02-2017 OF THIS HON'BLE COURT EXHIBIT P6 TRUE COPY OF ORDER DATED 08-05-2017 IN SLP(C) No.14725 of 2017 OF THE HON'BLE SUPREME COURT EXHIBIT P7 TRUE COPY OF IA NO.132 OF 2017 IN OS No.424 of 2006 ON THE FILES OF SUB COURT, IRINJALAKKUDA EXHIBIT P8 TRUE COPY OF THE OBJECTION DATED 13-06-2018 FILED BY THE PETITIONER TO THE IA NO.132 OF 2017 IN OS No.424 of 2006 ON THE FILES OF SUB COURT, IRINJALAKKUDA EXHIBIT P9 TRUE COPY OF ORDER DATED 15-09-2018 IN IA NO.132 OF 2017 IN OS No.424 of 2006 ON THE FILES OF SUB COURT, IRINJALAKKUDA