Kerala High Court
Anseer Gafoor vs Jeamkhan on 18 June, 2025
O.P.(C) No.1659 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K. NATARAJAN
WEDNESDAY, THE 18TH DAY OF JUNE 2025 / 28TH JYAISHTA, 1947
OP(C) NO. 1659 OF 2024
AGAINST THE ORDER IN IA NO.1 OF 2024 IN OS NO.40 OF
2021 OF ASSISTANT SESSIONS COURT/ADDITIONAL SUB
COURT,ATTINGAL
PETITIONER/3RD PETITIONER/3RD PLAINTIFF:
ANSEER GAFOOR
AGED 25 YEARS, S/O GAFOOR;
RESIDING AT: JAHANSA COTTAGE, SASTHAVATTOM P.O.,
CHILAMPIL DESOM, AZHOOR VILLAGE,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 308.
BY ADVS.
SRI.R.RAJESH (VARKALA)
SRI.M.KIRANLAL
SHRI.SAMEER M NAIR
SRI.MANU RAMACHANDRAN
SRI.T.S.SARATH
SMT.SAILAKSHMI MENON
SMT.JOTHISHA K.A.
SMT. AASHI K. SHAJAN
SMT.AKHILA B.
RESPONDENTS/RESPONDENTS/DEFENDANTS & PETITIONERS 1,2,4 &
PLAINTIFFS 1,2 & 4:
1 JEAMKHAN
AGED 45 YEARS, S/O ABDUL LATHEEF KHAN,
RESIDING AT: GRVILLAGE, THIRUVANANTHAPURAM
DISTRICTEEN, PIN - 695 308.
O.P.(C) No.1659 of 2024
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2 RASHEEDA BEEVI
AGED 64 YEARS, D/O MOHAMMED YUSUF;
RESIDING AT: VADAKKE BANGLOW, MANANAKKU,
VAKKOM DESOM, VAKKOM VILLAGE,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 308.
3 GAFOOR
S/O. ABDUL SHUKOOR, JAHANSA COTTAGE,
SASTHAVATTOM, AZHOOR VILLAGE, PIN - 695305 (DIED)
4 JAHANSA
AGED 47 YEARS, W/O. GAFOOR,
RESIDING AT JAHANSA COTTAGE, SASTHAVATTAM P.O.,
CHILAMBIL, AZHOOR VILLAGE, THIRUVANANTHAPURAM
DISTRICT, PIN - 695 305.
5 ANAS GAFOOR
AGED 25 YEARS, S/O. GAFOOR,
RESIDING AT JAHANSA COTTAGE, SASTHAVATTOM P.O.,
CHILAMBIL, AZHOOR VILLAGE, THIRUVANANTHAPURAM
DISTRICT, PIN - 595 300.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
18.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
This petition is filed by the petitioner by challenging the order passed by the Sub Court, Attingal in I.A.No.1 of 2024 in O.S.No.40 of 2021 for having rejected the application filed by the petitioner under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC).
2. Heard the learned counsel for the petitioner. Though the notice was issued on the respondents, they are unrepresented.
3. The case of the petitioner is that the suit, O.S.No.269 of 14 on the file of Munsiff Court, Varkala. Subsequently, the said case was transferred to Sub Court, Attingal and renumbered as O.S.No.40 of 2021. Prior to transfer, the petitioner filed an application for seeking amendment to the plaint and also for seeking possession of the entire property and claimed to be the owner of the property, which was purchased in the year 2008. The trial court, after hearing the arguments, dismissed the O.P.(C) No.1659 of 2024 4 2025:KER:45188 application for seeking amendment, hence the petitioner approached this Court.
4. The learned counsel for the petitioner is contended that earlier the suit was filed for declaration and injunction without having knowledge that the petitioner lost the possession. But, later the petitioner came to know that he lost the possession of the property. However, it was pleaded on 17.07.2013 while the defendant entered into the suit premises and cut down the trees and trying to encroach. Therefore, filed Suit for declaration and also declaring his possession and restraining the respondent from entering into the premises. But later he came to know that the respondent also filed a suit which is pending in the same court as OS No.289/2012 in Sub Court, Attingal. Both the cases were clubbed together. Where, the respondent also filed suit for declaration. Now, the petitioner by way of amendment seeks prayer for possession by adding some pleadings, as he lost O.P.(C) No.1659 of 2024 5 2025:KER:45188 possession. The trial court without considering the same, dismissed the application on the ground that the nature of the suit will be changed. It is contended that the nature of the suit will not be changed as the suit for declaration and injunction now seeking possession. However, if the amendment is not allowed, it leads to multiplicity of litigations, the petitioner is required to file a separate suit for declaration and once again for seeking possession. Therefore, amendment is required to be allowed. It is also contended that the trial court allowed the corrections in the pleadings but dismissed the application for making amendment to the prayer etc. Therefore, prayed for setting aside the order under challenge.
5. The respondents though served with summons but remain absent.
6. Having heard the arguments and perused the records, especially the suit for injunction produced by the petitioner and declaration of possession and restraining the O.P.(C) No.1659 of 2024 6 2025:KER:45188 defendant from premises. However, the respondent also filed suit, OS No.289/2012 which is pending before the Sub Court Attingal. The present petitioner's suit also though filed in Munsiff Court, Varkala, now it is transferred and pending before the Sub Court, Attingal, O.S. No.40 of 2021. Now both the Suits are trying together by clubbing.
7. The Hon'ble Supreme Court in (2008) 4 SCC 594, Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs and others, wherein the Hon'ble Supreme Court has held that when the petitioner lost the possession he has to file suit for seeking possession within 12 years. Admittedly, the plaintiff now wants to plead, that he lost the possession the respondent/defendant earlier in the year 2013 and immediately he has filed an application for making amendment to the plaint for inserting the pleadings regarding losing the possession and also for recovering the possession. The suit is for declaration and also for injunction and now it is also seeking possession. O.P.(C) No.1659 of 2024 7
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8. As held above, the Hon'ble Supreme Court in Anathula's case (supra) the Hon'ble apex Court has held that once the plaintiff lost possession, he has to file suit for declaration also recovery of the possession. admittedly suit for declaration is already filed and now the petitioner is required to seek for possession of the property and the limitation for seeking possession is 12 years as per the Limitation Act. Admittedly, the respondent also filed Suit, now both suits are clubbed together.
9. Such being the case, in order to avoid the multiplicity of litigation and filing a fresh suit by the plaintiff. It is necessary to the plaintiff to amend the pleadings and seeking possession in the same suit, which is pending. The real controversy can be resolved by the trial court by allowing the amendment to the petition. The allowing of the amendment petition will not change the nature of the suit as there is already a suit for declaration and injunction. Therefore, seeking consequential O.P.(C) No.1659 of 2024 8 2025:KER:45188 possession will not change the nature of the suit as stated by the Court below.
10. Considering the facts and circumstances of the case, I am of the view that the trial court committed error in dismissing the application, hence, Ext.P9 order has to be Set aside.
11. Accordingly, this Court passed the following order:-
i. The original petition is allowed.
ii. The order of the trial court in IA No.1/2024 in OS No.40/2021 filed under Order VI Rule 17 of the Code of Civil Procedure, 1908, is set aside iii. The application is allowed, permitted the plaintiff to amend the plaint as well as prayer of the plaint in accordance with law.O.P.(C) No.1659 of 2024 9
2025:KER:45188 iv. The trial court is directed to permit the plaintiff to carry out the amendment in plaint, amendment in cause title, as well as giving an opportunity to the defendants for filing any additional statement and frame the additional issues and proceed with the trial.
Sd/-
K. NATARAJAN JUDGE S.M.K. O.P.(C) No.1659 of 2024 10 2025:KER:45188 APPENDIX OF OP(C) 1659/2024 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF DOCUMENT NO. 1241 OF 2008 REGISTERED AS KAVALAYOOR SRO AS ON 19.08.2008 Exhibit P2 A TRUE COPY OF THE O.S. NO. 289 OF 2012 Exhibit P3 A TRUE COPY OF COMMISSION REPORT FILED BY ADVOCATE V.S. BEENA IN O.S.NO. 289 OF 2012 BEFORE HON'BLE SUB COURT OF ATTINGAL AS ON 12.11.2012 Exhibit P4 A TRUE COPY OF FIR IN CRIME NO. 101 OF 2013 OF KADAKKAVOOR POLICE STATION DATED 08.02.2013 Exhibit P5 A TRUE COPY OF O.S. NO. 269 OF 2014 DATED: 7.06.2014 RENUMBERED AS O.S. NO. 40 OF 2021 BEFORE SUB COURT ATTINGAL Exhibit P6 A TRUE COPY OF WRITTEN STATEMENT FILED BY RESPONDENT IN EXT. P5 SUIT Exhibit P7 A TRUE COPY OF THE I.A. NO. 2984/2019 IN OS. NO. 269/2019 BEFORE HON'BLE MUNSIFFS COURT, VARKALA RENUMBERED AS IA. NO.1/2024 IN O.S. NO. 40 OF 2021 BEFORE HON'BLE SUB COURT ATTINGAL Exhibit P8 A TRUE COPY OF OBJECTION FILED BY RESPONDENTS IN EXT. P7 APPLICATION Exhibit P9 A TRUE COPY OF THE ORDER IN I.A. NO. 1 OF 2024 IN O.S. NO. 40 OF 2021 BEFORE HON'BLE SUB COURT ATTINGAL