Kerala High Court
Madhavan Nair vs P.N.Ramachandran Nair on 3 February, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 23RD DAY OF JULY 2014/1ST SRAVANA, 1936
OP(C).No. 1089 of 2010 (O)
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O.S.NO. 54/2002 OF PRINCIPAL SUB COURT, NORTH PARAVUR
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PETITIONERS / PETITIONER / PLAINTIFFS :
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1. MADHAVAN NAIR, S/O. PARAMESWARAN NAIR,
AGED 54, MUTHIRAKKALAYIL, SHOBHANA NIVAS,
MANANI.P.O, PAYIPRA, MUVATTUPUZHA. (MANI)
2. KUTTAPPAN NAIR, S/O. PARAMESWARAN NAIR,
AGED 49, MUTHIRAKKALAYIL,
PAYIPRA, MUVATTUPUZHA (AMMINIKUTTAN).
3. RAJAN, S/O. PARAMESWARAN NAIR,
AGED 46, MUTHIRAKKALAYIL PAYIPRA, MUVATTUPUZHA.
4. JANAKI AMMA, D/O. PARAMESWARAN NAIR,
AGED 60, MUTHIRAKKALAYIL PAYIPRA, MUVATTUPUZHA,
(SUMATHI) ATHIPPILLY HOUSE, KUTTHUKUZHI.P.O.
KOTHAMANAGALAM.
5. KAMALAKSHI AMMA, D/O. PARAMESWARAN NAIR,
AGED 58, MUTHIRAKKALAYIL, PAYIPRA,
MUVATTUPUZHA. (KAMALA) PUTHETH HOUSE, METHALA.P.O.,
PERUMBAVOOR.
6. THANKAMMA, D/O. PRAMESWARAN NAIR,
AGED 52, MUTHIRAKKALAYIL PAYIPRA, MUVATTUPUZHA,
PAZHZMPILLY MOLATH HOUSE, CHERUVATTOOR.P.O.,
KOTHAMANGALAM.
BY ADV. SRI.K.V.JAYACHANDRAN
RESPONDENTS / RESPONDENTS / DEFENDANTS :
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1. P.N.RAMACHANDRAN NAIR, AGED ABOUT 65,
S/O. NARAYANAN NAIR, PIZHARATHU VEETTIL, AMPUNADU KARA,
KUNNATHUNADU TALUK, MALAYEDOM THURUTH,
P.O., PUKKATTUPADI, ALWAYE.(DIED)(LRS.ARE R.12 TO 15)
2. SAVITHRI AMMA, W/O. PARAMU NAIR, DO---DO.
* 3. BALAKRISHNAN, S/O. RAMAN NAIR,
KANIYAMKUDI VEETIL, ERAMALLUR PAKUTHY,
ERAMALLUR.P.O., 686 691, KOTHAMANGALAM THALUK.(DIED)
Msd. ..2/-
..2..
OP(C).No. 1089 of 2010 (O)
4. VIJAYAN, S/O. RAMAN NAIR, DO-DO.
5. LEELA, D/O. RAMAN NAIR, DO-DO.
6. KUTTAPPAN NAIR, AGED ABOUT 70,
S/O. KUNJIYAMMA, NETTILAMKUZHI VEETTIL, PAYIPRA KARA,
MULAVOOR VILLAGE, MUVATTUPUZHA THALUK.
PEEZHAKKAPPILLY.P.O., MUVATTUPUZHA.
7. PARAMESWARAN NAIR, AGED ABOUT 62,
S/O. KUNJIYAMMA, DO-DO.
8. HARIHARAN NAIR, AGED ABOUT 50,
S/O. KUNJIYAMMA, DO-DO.
9. JANAKI AMMA, AGED ABOUT 66,
D/O. KUNJIYAMMA, DO-DO.
10. RAGUMANI AMMA, AGED ABOUT 56,
D/O. KUNJIYAMMA, AND W/O. RAMAKRISHANA NAIR,
THONNAMAKKAL VEEDU, MULLAPADI JUN. ARAKKUZHA.
11. AMMUKUTTY AMMA, AGED ABOUT 80,
D/O. LEKSHMI AMMA, AND W/O. PARAMESWARAN NAIR, PUTHETH,
PURAYIDATHIL, METHALA KARA, ASAMMANNUR VILLAGE,
KUNNATHUNADU THALUK (DIED) (LRS. ARE APPELLANTS)
12. SATHYABHAMA, W/O.LATE RAMACHANDRAN,
AGED 55 YEARS, RESDING AT PIZHARATHU VEETTIL,
AMPUNADU KARA, KUNNATHUNADU THALUK, MALAYEDOM THURUTH,
P.O., PUKKATTUPADI, ALWAYE. (DIED) (LRS. ARE R.13 TO 15)
13. OMANA, D/O.LATE RAMACHANDRAN, AGED 30 YEARS,
RESIDING AT PIZHARATHU VEETTIL, AMPUNADU KARA,
KUNNATHUNADU THALUK, MALAYEDOM THURUTH, P.O.,
PUKATTUPADI, ALWAYE.
14. HARIDAS, S/O. LATE RAMACHANDRAN, AGED 26 YEARS,
RESIDING AT PIZHARATHU VEETTIL, AMPUNADU KARA,
KUNNATHUNADU THALUK, MALAYEDOM THURUTHU, P.O.,
PUKKATTUPADI, ALWAYE.
15. ARUN, S/O.LATE RAMACHANDRAN, AGED 55 YEARS,
RESIDING AT PIZHARATHU VEETTIL, AMPUNADU KARA,
KUNNATHUNADU THALUK, MALAYEDOM THURUTH,
P.O., PUKKATTUPADI, ALWAYE.
* RESPONDENT NO 4 & 5 ARE RECORDED AS THE LEGAL REPRESENTATIVES
OF DECEASED THIRD RESPONDENT AS PRE ORDER DATED 03.02.2011.
R2, R4, R5 & 13 TO 15 BY ADV. SRI.N.ANILKUMAR
R8 & R9 BY ADVS. SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23-07-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
OP(C).No. 1089 of 2010 (O)
APPENDIX
PETITIONER(S)' EXHIBITS:
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EXT.P1 : THE TRUE COPY OF THE PLAINT IN O.S.NO.54/2002.
EXT.P2 : TRUE COPY OF THE WRITTEN STATEMENT OF DEFENDANTS 1 TO 5
IN O.S.NO.54/02.
EXT.P3 : TRUE COPY OF THE AMENDMENT APPLICATION I.A.NO.139/2006.
EXT.P4 : TRUE COPY OF THE JUDGMENT IN A.S.NO.263/2006 OF THE HON'BLE
DISTRICT COURT N.PARUR.
EXT.P5 : THE TRUE COPY OF THE OBJECTION OF 15TH RESPONDENT OF
EXT.P3.
EXT.P6 : THE TRUE COPY OF THE DISMISSAL ORDER IN I.A.NO.139/2006.
RESPONDENT(S)' EXHIBITS:
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NIL
//TRUE COPY//
P.A.TO JUDGE.
Msd.
'C.R.'
K.HARILAL, J.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
O.P. (C). No.1089 of 2010
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Dated this the 23rd day of July, 2014
JUDGMENT
The petitioners are the plaintiffs and the respondents are the defendants in O.S. No.54/02 on the files of the Sub Court, North Parur, as well as the petitioners in I.A. No.139/06 filed therein. The suit was filed for declaration and prohibitory injunction. As per the relief sought for, the petitioners wanted to declare that the decree and judgment in O.S.No.745/94 are not binding the petitioners and their predecessors. O.S.No.745/94 is a suit for partition filed before the same Court. This suit was filed by the respondents/defendants without making the petitioners' father in the party array, knowing fully well that the property belongs to the father of the petitioners. I.A. No.139/06 was filed under Order VI Rule 17 of the Code of Civil Procedure seeking an amendment in the pleadings as well as cause of action. In the affidavit, it is stated that at the time of filing the suit, it was inadvertently and mistakenly stated in the plaint that the cause of action started on 29-10-1998, the date of O.P(C).1089/10-O :2:
death of the plaintiffs' father. Actually, the cause of action has arisen when the defendants filed final decree application and commission application and caused notices to the parties and started to proceed against the plaint schedule properties. This fact is inadvertently and mistakenly omitted in the plaint. Since the father is not a party to the suit, the decree and judgment in O.S.No.745/94 are only to be ignored. This is also not properly stated in the plaint. Hence, sought for an order permitting the plaintiffs to substitute a fresh cause of action which arose on 15-9-1999, when the defendants instituted final decree proceedings in O.S.No.745/94, after deleting the existing cause of action which arose on 29-10-1998. Two other amendments are also sought for. The respondents resisted the suit as well as the amendment application. In the objection to the amendment application, the respondents contended that the amendment sought for is highly belated and the same is intended to get over the bar under the Limitation Act. O.S.No.745/94 was decreed ex parte on 29-9-1998. But, as per the original cause of action, the suit was filed after 3 years. Thus, the amendment was intended to circumvent the bar under the Limitation Act. It is also contended that the petitioners were well aware of the institution of O.S. No.745/94 and the decree passed thereunder.
2. The amendment application was dismissed without a O.P(C).1089/10-O :3:
speaking order and thereafter the suit was dismissed on the question of limitation. Aggrieved by the dismissal of the suit, the petitioners preferred an appeal, A.S. No.263/06 before the Additional District Court, North Paravur. The appeal was allowed and the suit was remanded with a direction to consider the matter afresh and pass a considered order on the amendment application also.
3. After considering the rival contentions, the trial court dismissed the above amendment application on a finding that the amendment was sought for only to get over the bar of limitation and if the amendment is allowed, the right acquired by the opposite party as to the plea of the bar of limitation would be lost and as such the amendment cannot be allowed. The legality and propriety of the said order are under challenge in this Original Petition.
4. The learned counsel for the petitioners advanced arguments challenging the findings under which the amendment application has been dismissed. According to the learned counsel, the findings are erroneous and opposed to law. The court below failed to notice that by the amendment, no new case is being pleaded, and the amendment is intended only to clarify the actual cause of action, which was omitted inadvertently and mistakenly and also to state about the final O.P(C).1089/10-O :4:
decree proceedings initiated by the respondents. No prejudice would be caused to the respondents/defendants and would not cause them any injury, which could not be compensated with costs. The cause of action in this suit arose, when the respondents filed final decree application on 15-9-1999 and it is a continuous one. But, due to an inadvertent mistake, the cause of action is shown as on "29-10-1998", the date on which the petitioners' father expired. Thus the amendment sought for correction of an inadvertent mistake crept in the pleadings.
5. Per contra, the learned counsel for the respondents advanced arguments to justify the finding that the amendment is intended to circumvent the bar under the Limitation Act. According to the respondents, the amendment will change the basic nature and character of the suit. Moreover, the amendment, if allowed, will take away a valuable right of defence accrued to the respondents under law. Thus, the petition lacks bona fides and the same is a mischievous attempt to get over the bar of institution of the suit under the Limitation Act only.
6. Heard both sides. In view of the rival contentions advanced at the Bar, the question that emerges for consideration in this Original Petition is, whether there is any illegality or impropriety in the findings under which the O.P(C).1089/10-O :5:
amendment application has been dismissed by the court below.
7. Going by the pleadings, it could be seen that in para No.8, where the plaintiffs themselves describe their cause of action, it is stated that the cause of action of the suit arose on 29-10-1998 when the predecessor of the plaintiffs, Parameswaran Nair, died and the plaint schedule property devolved on the plaintiffs and the 11th defendant and thereafter continuously at Asamannoor Village within the jurisdiction of the Court. But, now the amendment application is filed to change the day on which the cause of action has arisen, which is specifically stated in the cause of action portion of the suit. Indisputably, the amendment sought for is belated one, because, as rightly submitted by the learned counsel for the respondents, going by the records, it could be seen that the amendment application was filed after the final hearing of the suit, when the case was posted for judgment.
8. What are the conditions pre-requisite for substituting the date of cause of action by way of amendment? In certain cases, cause of action is a continuous one and in some other cases, cause of action is one that may arise on a particular date, when the defendant commits any particular act or the plaintiff gets the right to sue. Plethora of decisions laid down by the Supreme Court as well as this Court interpreted cause of action O.P(C).1089/10-O :6:
in different angles. Among various decisions, the following decision assumes significance in the present context. In Rajasthan High Court Advocates' Association v. Union of India and others [2001 (2) SCC 294 : AIR 2001 SC 416], the Supreme Court followed the earlier decisions and put it in another angle. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. As noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action." In Sonic Surgicals v. National Insurance Company Ltd. [2009 KHC 5136 : 2010 (1) SCC 135 : 2009 (4) KLT SN 50], the Supreme Court reiterated the earlier proposition and put it in a simplified manner. "The expression cause of action means the bundle of facts which gives rise to a right or liability."
O.P(C).1089/10-O :7:
9. In the above view, date of cause of action is the date that spontaneously emerges from bundle of facts which gives rise to a right or liability. If that be so, the date of cause of action must be the date on which a right or liability arose and that date must be compatible with bundle of remaining facts pleaded so as to make cause of action compact and perfect. The date on which cause of action arose cannot be one divorced from the bundle of facts pleaded and it must be seemly compact and compatible with facts pleaded. In short, substitution or interpolation of the date of cause of action by way of amendment, which gives rise to incompatibility or dissonance with remaining fact, so as to circumvent bar under the Law of Limitation, is impermissible and liable to be rejected.
10. Going by Order VI Rule 17 of the C.P.C., 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. As regards the present amendment, pertaining to the date on which the cause of action arose, I am of the opinion that the same is not necessary for the purpose of determining the real question of controversy between the parties. The date of death of the plaintiffs' father is O.P(C).1089/10-O :8:
not a disputed question and the plaintiffs themselves averred that their cause of action has arisen on 29-10-1998, when their father died. I am of the opinion that the said averment is not a mistake as argued by the learned counsel for the petitioners. The reliefs sought for in the suit are made in suitable and compatible with the existing cause of action. I am unable to believe that it is a mistake inadvertently made or it is an omission. When the petitioners were parties in O.S.No.745/94 and they themselves had earlier filed an I.A. for setting aside the preliminary decree passed in O.S.No.745/94, it cannot be contended that the cause of action has arisen on 15-9-1999, when the respondents filed the final decree application, which ended in dismissal. Indisputably, the petitioners were fully aware of the proceedings in O.S.No.745/94 in which they were also parties and the final decree application is only a natural consequence of the preliminary decree against which they themselves earlier filed an application to set it aside. Therefore, I find that there is no bona fides in the application to amend the cause of action and the same is incompatible with the rest of the pleadings in the original suit. In short, the change of cause of action is intended to circumvent the bar under the Limitation Act. Therefore, I cannot find fault with the court below in arriving at such a conclusion. There is no illegality or O.P(C).1089/10-O :9:
impropriety in the said findings under which the substitution of the date of cause of action stands rejected and I also concur with the said findings.
11. As regards the amendment sought for, by adding paragraph 8(a) and making deletion in relief No.(i), it is seen that the said amendments are sought for, remoulding the reliefs sought for. Though it is also belated, I do not find that the same would cause any prejudice to the opposite party. Similarly, this amendment will not alter the nature and character of the pleadings already made in the original suit. In the above view, the amendment sought for by adding paragraph 8(a) and remoulding relief No.(i) will stand allowed.
This Original Petition is allowed in part.
Sd/-
(K.HARILAL, JUDGE) okb.