Kerala High Court
Alakkal Puthiya Veettil Kadamboor ... vs Alakkal Puthiya Veettil Kadamboor ... on 20 May, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 19TH DAY OF MARCH 2013/28TH PHALGUNA 1934
OP(C).No. 4395 of 2012 (O)
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PETITIONER(S):
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ALAKKAL PUTHIYA VEETTIL KADAMBOOR RAGHAVAN NAMBIAR,
AGED 68 YEARS, AGRICULTURIST, KOOVERI AMSOM DESOM,
TALIPARAMBA TALUK.
BY ADVS.SRI.ALAN PAPALI
SRI.P.K.VIJAYAMOHANAN
SMT.O.V.BINDU
SMT.M.R.JAYALATHA
RESPONDENT(S):
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1. ALAKKAL PUTHIYA VEETTIL KADAMBOOR DAMODARAN NAMBIAR,
AGED 70 YEARS, S/O.LAKSHMI AMMA, AGRICULTURIST,
KOOVERI AMSOM DESOM,
TALIPARAMBA TALUK, PIN - 670 581.
2. A.P.K.MEENAKSHI AMMA, AGED 63 YEARS
AGRICULTURIST, KOOVERI AMSOM DESOM, TALIPARAMBA TALUK,
PIN - 670 581.
3. A.P.K.LAKSHMANAN, AGED 60 YEARS,
AGRICULTURIST, KOOVERI AMSOM DESOM, TALIPARAMBA TALUK,
PIN - 670 581.
4. A.P.K.NARAYANAN, AGED 58 YEARS,
AGRICULTURIST, KOOVERI AMSOM DESOM, TALIPARAMBA TALUK,
PIN - 670 581.
5. A.P.K.NALINI, AGED 49 YEARS,
AGRICULTURIST, KOOVERI AMSOM DESOM, TALIPARAMBA TALUK,
PIN - 670 581.
6. A.P.K.THANKAMANI, AGED 47 YEARS,
AGRICULTURIST, KOOVERI AMSOM DESOM, TALIPARAMBA TALUK,
PIN - 670 581.
OP(C).No. 4395 of 2012 (O)
7. PALLAKKANTAKATH KADEEJA, AGED 61 YEARS,
D/O.THUNTHAKKACHI THENAN MAMMED, AGRICULTURIST,
KUTTIYERI AMSOM, CHERIYOOR DESOM, TALIPARAMBA TALUK,
PIN - 670 141.
8. PALLAKKANTAKATH MARIYAM, AGED 58 YEARS,
D/O.THUNTHAKKACHI THENAN MAMMED, AGRICULTURIST,
KUTTIYERI AMSOM, CHERIYOOR DESOM, TALIPARAMBA TALUK,
PIN - 670 141.
9. PALLAKKANTAKATH NABEESSA, AGED 56 YEARS,
D/O.THUNTHAKKACHI THENAN MAMMED, AGRICULTURIST,
KUTTIYERI AMSOM, CHERIYOOR DESOM, TALIPARAMBA TALUK,
PIN - 670 141.
10. PALLAKKANTAKATH MAMMED @ MUHAMMED KUNHI, AGED 54 YEARS,
S/O.THUNTHAKKACHI THENAN MAMMED, AGRICULTURIST,
KUTTIYERI AMSOM, CHERIYOOR DESOM, TALIPARAMBA TALUK
PIN - 670 141.
11. KATTITTA VALAPPIL AYAMMED, AGED 58 YEARS,
S/O.THUNTHAKKACHI THENAN MAMMED, AGRICULTURIST,
EZHOM AMSOM, NARIKKODE DESOM, KANNUR DISTRICT,
PIN - 670 334.
12. KATTITTA VALAPPIL ALEEMA, AGED 54 YEARS,
D/O.THUNTHAKKACHI THENAN MAMMED, W/O.MAMMU
AGRICULTURIST, KUTTIYERI AMSOM, MAVICHERI DESOM,
TALIPARAMBA TALUK, PIN - 670 141.
13. KATTITTA VALAPPIL NABEESSA, AGED 53 YEARS,
D/O.THUNTHAKKACHI THENAN MAMMED, W/O.ASSEENAR,
AGRICULTURIST, KOOVERI AMSOM, CHAPPARAPPADAVU DESOM,
CHAPPARAPPADAVU P.O.- 670 581, TALIPARAMBA TALUK.
14. P.P.RASHEEDA, AGED 75 YEARS,
W/O.LATE THUNTHAKKACHI THANAN MAMMED,
KUTTIYERI AMSOM, CHERIYOOR DESOM, TALIPARAMBA TALUK,
PIN - 670 141.
15. NAFEESSA P.P., AGED 46 YEARS,
W/O.ASHRAF, NO OCCUPATION, KUTTIYERI AMSOM,
CHERIYOOR DESOM, TALIPARAMBA TALUK, PIN - 670 141.
16. P.P.PATHUMMA BEEBI, AGED 44 YEARS,
W/O.MOIDEEN KUTTY, NO OCCUPATION, KUTTIYERI AMSOM
CHERIYOOR DESOM, TALIPARAMBA TALUK, PIN - 670 141.
OP(C).No. 4395 of 2012 (O)
R7 TO 10 BY ADVS. SRI.G.GIREESH
SRI.U.BALAGANGADHARAN
R11-13 BY ADV. SRI.SAIGI JACOB PALATTY
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DSV/-
OP(C).No. 4395 of 2012 (O)
APPENDIX
PETITIONER(S) EXHIBITS :
EXHIBIT P1. COPY OF THE PLAINT FILED BEFORE THE MUNSIFF COURT,
TALIPARAMBA IN O.S.NO.185/2005 DATED 20.05.2005.
EXHIBIT P2. COPY OF THE AMENDMENT PETITION I.A.NO.1752/2011 FILED IN
O.S.NO.185/2005 DATED 09.08.2011.
EXHIBIT P3. COPY OF THE PRELIMINARY DECREE OF THE HON'BLE MUNSIFF
COURT IN O.S.NO.185/2005 DATED 13.02.2012.
EXHIBIT P4. COPY OF THE JUDGMENT DATED 13.02.2012 OF THE MUNSIFF
COURT IN O.S.NO.185/2005.
EXHIBIT P5. COPY OF THE PETITION AS I.A.NO.2168/2012 IN O.S.NO.185/2005
FILED UNDER SECTION 152 OF THE C.P.C. TO AMEND THE JUDGMENT AND
DECREE BEFORE THE HON'BLE MUNSIFF COURT, TALIPARAMBA DATED
22.06.2012.
EXHIBIT P6. COPY OF THE ORDER DATED 24.09.2012 PASSED BY THE MUNSIFF
COURT, TALIPARAMBA IN O.S.NO.185/2005.
RESPONDENTS' EXHIBITS : NIL
// TRUE COPY //
P.A. TO JUDGE
DSV/-
THOMAS P. JOSEPH, J.
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Original Petition (civil) No. 4395 of 2012
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Dated this the 19th day of March, 2013
JUDGMENT
Fourteenth respondent expired. Other respondents are served. In view of the manner in which I propose to dispose of this original petition, it is not necessary to implead legal representatives of the 14th respondent.
2. Ext.P6, order passed by the learned Munsiff, Taliparamba on I.A No. 2168 of 2012 in O.S No. 185 of 2005 refusing amendment of judgment and decree as prayed for in Ext.P5, application is under challenge.
3. First respondent filed O.S No. 185 of 2005 for partition. First defendant in the suit is the mother of plaintiff and defendants 2 to 7. She died pending the suit. First respondent/plaintiff filed I.A. No. 1752 of 2011 to amend the plaint consequent to the death of first defendant (mother). That application was allowed. That was followed by a preliminary decree which defendants 8 to 14 have challenged in A.S. No. 48 of 2012. Pending that appeal petitioner/second defendant filed Ext.P5, application - I.A. No. 2168 of 2012 for amendment of O.P.(C) No. 4395 of 2012 -: 2 :- judgment and decree of trial court. Petitioner stated that instead of recording death of the first defendant, it was wrongly recorded that petitioner/second dependent expired.
4. Learned Munsiff has dismissed the application observing that as alleged, there was no mistake on the part of court and that the mistake has crept in from I.A. No. 1752 of 2011 filed by the first respondent/plaintiff.
5. There is no dispute that it is the first defendant who died pending the suit. There is also no dispute that in the judgment and decree, petitioner/second respondent is shown as dead.
6. No matter whether the mistake has arisen from amendment of plaint, that mistake has to be corrected. Learned Munsiff was not correct in taking a hyper technical view on the statement of petitioner that the court committed mistake is not true and that in so far as there is no mistake on the part of court, correction is not required. I am inclined to allow Ext.P5, application.
Resultantly, this original petition is allowed as under:-
1) Ext.P6, order dated 24.09.2012 on I.A. No. 2468 of O.P.(C) No. 4395 of 2012 -: 3 :- 2012 in O.S. No.185 of 2005 of Munsiff's Court, Taliparamba is set aside.
2) I.A. No. 2168 of 2012 is allowed.
3) Office of learned Munsiff, Taliparamba shall carry out correction in judgment and decree in O.S. No. 185 of 2005 as prayed for in Ext.P5, application.
Sd/-
THOMAS P.JOSEPH, JUDGE smv //True copy// P.A. To Judge