Kerala High Court
N.P.Koya Haji vs Pulloormannameethal Kalyani Amma on 10 December, 1986
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
MONDAY, THE 13TH DAY OF AUGUST 2012/22ND SRAVANA 1934
OP(C).No. 3860 of 2011 (O)
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OS.182/2005 of PRL.MUNSIFF'S COURT, KOZHIKODE-II
PETITIONER(S)/PETITIONERS/DEFENDANTS 3,4 AND 5:
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1. N.P.KOYA HAJI, S/O. ATHRAMAN,
KUPPERI NEDOOLIL, KUTTIKATOOR AMSOM, PALKOTTUPURAM
DESOM, KOZHIKODE.
2. N.P.AYISHAKUTTY, W/O. N.P.KOYA HAJI,
KUPPERI NEDOOLIL, KUTTIKATOOR AMSOM, PALKOTTUPURAM
DESOM, KOZHIKODE.
3. N.P.GAFOOR, S/O. N.P.KOYA HAJI,
KUPPERI NEDOOLIL, KUTTIKATOOR AMSOM
PALKOTTUPURAM DESOM, KOZHIKODE.
BY ADVS.SRI.K.M.FIROZ
SMT.M.SHAJNA
RESPONDENT(S)/SUPPLEMENTAL PLAINTIFFS 2-6, DEFENDANTS 1, 2 AND 6:
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1. PULLOORMANNAMEETHAL KALYANI AMMA,
PULLOORMANNAMEETHAL, AGED 85 YEARS, W/O. LATE
GOVINDAN NAIR, KARUVATTA, KUTTIKKATTOOR VILLAGE
PAINGOTTUPURAM DESOM, KOZHIKODE TALUK.
2. KODUVALLYTHAZHAM POTTAYIL KOUSALYA
AMMA, AGED 62 YEARS, D/O.LATE GOVINDANKUTTY NAIR
KUTTIKKATTOOR VILLAGE, PAINGOTTUPURAM DESOM
KOZHIKODE TALUK.
3. PULLOORMANNAMEETHAL ANANDAM, AGED 50,
D/O. LATE GOVINDANKUTTY NAIR, KUTTIKKATTOR, VILLAGE
PAINGOTTUPURAM DESOM, KOZHIKODE TALUK.
4. PULLOORMANNAMEETHAL PREMA @ PREMA P.M.,
AGED 46 YEARS, D/O. LATE GOVINDANKUTTY NAIR
KUTTIKKATTOOR VILLAGE, PAINGOTTUPURAM DESOM
KOZHIKODE TALUK.
OP(C) NO. 3860/2011
5. PULLOORMANNAMEETHAL AMRITHAVALLY,
AGED 42 YEARS, D/O. LATE GOVINDANKUTTY NAIR
KUTTIKKATTOOR VILLAGE, PAINGOTTUPURAM DESOM
KOZHIKODE TALUK.
6. KAMALAM, D/O. SUBADRA BRAHMINI AMMA,
THOTTATHAZHATH MEETHAL HOUSE, VENGERI AMSOM DESOM
KOZHIKODE TALUK.
7. KRISHNADASAN NAMBEESAN,
THOTTATHAZHATH MEETHAL HOUSE, VENGERI AMSOM DESOM
KOZHIKODE TALUK.
8. KUPPERI SABEENA, W/O. N.P.GAFOOR,
KUPPERI NEDOOLIL, KUTTIKATOOR AMSOM
PALKOTTUPURAM DESOM, KOZHIKODE.
BY ADV. SRI.T.SETHUMADHAVAN
BY ADV. SRI.PUSHPARAJAN KODOTH
BY ADV. SRI.K.JAYESH MOHANKUMAR
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13-08-2012, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 3860/2011
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT-P1. A TRUE COPY OF THE PLAINT IN OS NO.182/2005 ON THE FILES OF
PRINCIPAL MUNSIFF'S COURT-II, KOZHIKODE.
EXHIBIT-P1(a).A TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE IMPLEADING
APPLICATION IA 365/2011.
EXHIBIT-P2. A TRUE COPY OF THE WRITTEN STATEMENT OF D3 TO D5 IN OS
NO.182 OF 2005 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-II,
KOZHIKODE.
EXHIBIT-P3. A TRUE COPY OF THE DECREE DATED 10.12.1986 PASSED BY THE
MUNSIFF'S COURT, KOZHIKODE II IN OS NO.565 OF 1985.
EXHIBIT-P4. A TRUE COPY OF THE DRAFT OFFICE COPY OF THE WRITTEN
STATEMENT OF D3 TO D5 IN OS NO.182 OF 2005 ON THE FILES OF
PRINCIPAL MUNSIFF'S COUT-II, KOZHIKODE AS MAINTAINED IN THE
OFFICE OF THE COUNSEL FOR THE PETITIONERS.
EXHIBIT-P5. A TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA NO.3522 OF
2011 APPLICATION FOR AMENDMENT OF THE WRITTEN STATEMENT FOR
INCORPORATING THE CORRECT SCHEDULE.
EXHIBIT-P6. A TRUE COPY OF THE COUTER/OBJECTION DATED 6.9.2011 IN IA
NO.3522 OF 2011 IN OS NO.182/2005 ON THE FILES OF PRINCIPAL
MUNSIFF'S COURT-II,KOZHIKODE.
EXHIBIT-P7. A TRUE COPY OF THE ORDER DATED 27.9.2011 IN IA NO.3522 OF
2011, APPLICATION FOR AMENDMENT OF THE WRITTEN STATEMENT IN
OS NO.182 OF 2005 PASSED BY THE PRINCIPAL MUNSIFF'S COURT-
II, KOZHIKODE.
EXHIBIT-P8. A TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE APPLICATION
IA 4683 OF 2011 FOR RE-OPENING OF EVIDENCE OF DEFENDANTS IN
OS NO.182/2005 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-II,
KOZHIKODE.
EXHIBIT-P9 A TRUE COPY OF THE COMMON JUDGMENT IN O.S. NO. 789 OF 1983 AND
O.S. NO. 565 OF 1985 DATED 10.12.1986 PASSED BY THE PRINCIPAL
MUNSIFF'S COURT-II KOZHIKODE DATED 10.12.1986.
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P.A. TO JUDGE.
V. CHITAMBARESH, J
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OP(C) NO. 3860 OF 2011
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Dated this the 13th day of August, 2012
JUDGMENT
Defendants 3 and 4 had earlier filed O.S. Nos. 789/1983 and 565/1985 on the file of the court of the Munsiff II Kozhikode. O.S. No. 789/1983 was for an injunction and O.S. No. 565/1985 was for a declaration that the decree in O.S. No. 490/1978 of the same court as affirmed in appeal and second appeal was not valid and binding on them and the plaint schedule property therein. The suits were decreed and the same have become final and the present plaintiffs in O.S. No. 182/2005 are not parties therein.
2. The suit in O.S. No. 182/2005 on the file of the court of the Munsiff II Kozhikode is for an injunction restraining the first defendant from executing any document in respect of the plaint 'C' schedule property. The plaint 'C' schedule property of extent 41 cents is said to be part of plaint 'A' schedule property of extent 52 cents after deducting 11 cents assigned away and shown as the plaint 'B' schedule property. Defendants 3 and 4 have filed a written statement 2 OP(C) No. 3860/2011 staking exclusive right over portions of the property covered by the decree in O.S. Nos. 789/1983 and 565/1985. The joint written statement filed by defendants 3, 4 and 5 did contain a schedule wherein a mistake is alleged to have crept in. This was sought to be corrected by an application for amendment which has been dismissed by the court below by the order impugned.
3. It may at once be noticed that defendants 3, 4 and 5 have not raised any counter claim in O.S. No. 182/2005. There was therefore no necessity to incorporate a separate schedule of property in their written statement. The body of the written statement already contains a plea as regards the reliance placed on the decree in O.S. Nos. 789/1983 and 565/1985. It is on the basis of the decree in those suits that defendants 3, 4 and 5 are staking an exclusive right. The plaintiff in O.S. No. 182/2005 however maintains that he is not a party therein and is not bound by the decrees.
4. Defendants 3, 4 and 5 contend that a mistake crept in the schedule of their written statement while copying the decree in O.S. Nos. 789/1983 and 565/1985. The mistake was 3 OP(C) No. 3860/2011 committed by the clerk of the Advocate and the draft copy maintained with the Advocate contains the correct schedule. The affidavit accompanying the application for amendment satisfies the conditions laid down in the proviso to Order VI Rule 17 of the Code of Civil Procedure. Defendants 3 and 4 maintained that this mistake could not be noticed earlier (since the office copy had the correct schedule) notwithstanding the exercise of due diligence. I am therefore inclined to allow the application for amendment of the schedule of the written statement filed by defendants 3, 4 and 5.
5. There is however some laches on the part of defendants 3, 4 and 5 in not taking steps earlier to correct the schedule of the written statement. This delay can be compensated by directing them to pay costs to the plaintiffs. The application for amendment of the written statement will stand allowed on condition that the petitioners/defendants 3, 4 and 5 pay a sum of ` 15,000/- (Rupees Fifteen thousand only) as costs to the counsel for the plaintiffs in this Original Petition within a period of three weeks. The order impugned will remain intact in 4 OP(C) No. 3860/2011 case the petitioners omit to pay the costs as directed.
6. The court below is also at liberty to dispose of I.A. No. 4683/2011 in O.S. No. 182/2005 on the file of the court of the Munsiff II, Kozhikode in accordance with law.
The Original Petition is disposed of as above.
V. CHITAMBARESH JUDGE ncd