Kerala High Court
Attukal Bhagavathi Temple Trust vs C. Manikantan Nair on 30 January, 2025
2025:KER:8143
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 30TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946
OP(C) NO. 2099 OF 2018
AGAINST THE ORDER/JUDGMENT DATED IN OS NO.493 OF 2002 OF ASSISTANT
SESSIONS COURT/I ADDITIONAL SUB COURT,THIRUVANANTHAPURAM
PETITIONER:
ATTUKAL BHAGSAVATHY TEMPLE TRUEST
ATTUKAL, MANACAUD P O, THIRUVANANTHAPURAM, PIN- 695009,
REPRESENTED BY ITS SECRETARY, K.SISUPALAN NAIR,
S/O.K.KRISHNAN NAIR, AGED 57 YEARS, ATTUKAL BHAGAVATHY
TEMPLE TRUST, ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM,
PIN- 695009.
BY ADVS.
D.KISHORE
SMT.MINI GOPINATH, CGC
MEERA GOPINATH
R.MURALEEKRISHNAN (MALAKKARA)
RESPONDENTS:
1 C. MANIKANTAN NAIR
AGED 67 YEARS
S/O.CHELLAPPAN PILLAI, RESIDING MUTHUVALLY HOUSE, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM- 695009, PIN - 695009
2 M.PRABHAKARAN NAIR,
AGED 76 YEARS
S/O.MADHAVAN PILLAI, RESIDING AT NEDIGAVILAKAM, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM (DIED), PIN - 695009
*ADDL.R3 SMT. LALITHAMBIKA DEVI K
W/O. LATE M. PRABHAKARAN NAIR, AGED 84 YEARS RESIDING AT TC
22/761(5) , ABHRA-46, NEDIYAVILAKATHU VEEDU, ATTUKAL,
MANACAUD P.O., THIRUVANANTHAPURAM - 695009
*ADDL.R4 SRI.ANIL KUMAR. P
S/O. LATE M. PRABHAKARAN NAIR, AGED 62 YEARS, RESIDING AT
'PRABHATHAM' ABHRA-3, TC 22/315(1), ATTUKAL, MANACAUD P.O.,
THIRUVANANTHAPURAM - 695009
OP(C) Nos. 2099, 2098 & 2101 of 2018 :2:
2025:KER:8143
*ADDL.R5 SRI. AJITHKUMAR P
S/O. LATE M. PRABHAKARAN NAIR, AGED 61 YEARS, RESIDING
IN ABHRA-45, TC 22/761(5) (OLD), NEDIYAVILAKATHU VEEDU,
ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM- 695009
*ADDL.R6 SRI. ARUNKUMAR. P
S/O. LATE M. PRABHAKARAN NAIR AGED 61 YEARS, RESIDING
AT ABHRA-46, TC 22/761(5), NEDIYAVILAKATHU VEEDU,
ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM-695009.
*(ADDL. R3 TO R6 ARE IMPLEADED AS THE LRS OF DECEASED
R2 VIDE ORDER DATED 16.12.2022 IN I.A.1/2022.)
**ADDL.R7 SHAJI MANI
S/O. MANIKANTAN NAIR, RESIDING AT MUTHUVALLY HOUSE,
ATTUKAL, MANACAUD, THIRUVANANTHAPURAM -695009
**ADDL.R8 SHEEJA MANI
D/O. MANIKANTAN NAIR, MUTHUVALLY HOUSE, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM-695009
**(ADDITIONAL R7 AND R8 ARE IMPLEADED AS THE LEGAL
HEIRS OF DECEASED R1 VIDE ORDER DATED 03.10.2024 IN IA
1/2023.)
***ADDL.R9 LILLY MONY
AGED 71 YEARS
W/O. LATE MANIKANTAN NAIR, RESIDING AT MUTHUVALLY
HOUSE, ATTUKAL, MANACAUD, THIRUVANANTHAPURAM -695009
***(IMPLEADED ADDITIONAL RESPONDENT 9 AS THE LEGAL
REPRESENTATIVE OF THE DECEASED R1 VIDE ORDER DATED
30.01.2025 IN IA 2/2024)
BY ADVS.
K.B. PRADEEP
D.KISHORE
D.SAJEEV
LIGEY ANTONY
ABHIRAM B.H.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30.01.2025,
ALONG WITH OP(C)NOS.2101/2018 & 2098/2018, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
OP(C) Nos. 2099, 2098 & 2101 of 2018 :3:
2025:KER:8143
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 30TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946
OP(C) NO. 2101 OF 2018
AGAINST THE ORDER/JUDGMENT DATED IN OS NO.335 OF 2005 OF ASSISTANT
SESSIONS COURT/I ADDITIONAL SUB COURT,THIRUVANANTHAPURAM
PETITIONER:
ATTUKAL BHAGAVATHI TEMPLE TRUST
ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM, PIN 695009,
REPRESENTED BY ITS SECRETARY, K.SISUPALAN NAIR, ATTUKAL
BHAGAVATHY TEMPLE TRUST, ATTUKAL, MANACAUD P.O.,
THIRUVANANTHAPURAM, PIN 695009.
THIRUVANANTHAPURAM, PIN - 695009
BY ADVS.
KISHORE D.
MINI GOPINATH
MEERA GOPINATH
MURALEEKRISHNAN (MALAKKARA) R.
RESPONDENTS:
1 M. PRABHAKARAN NAIR
AGED 76 YEARS
RESIDING AT NEDIGAVILAKAM, ATTUKAL, MANACAUD,
THIRUVANANTHAPURAM-695009.
2 C.MANIKANTAN NAIR
AGED 67 YEARS
RESIDING AT MUTHUVALLY HOUSE, ATTUKAL, MANACAUD,
THIRUVANANTHAPURAM - 695 009.
*ADDL.R3 LALITHAMBIKA DEVI K.
AGED 84 YEARS
W/O. LATE M.PRABHAKARAN NAIR, WS/O. LATE M. PRABHAKARAN
NAIR, RESIDING AT TC 22/761(5), ABHRA-46,
NEDIYAVILAKATHU VEEDU, ATTUKAL, MANACAUD P.O.,
THIRUVANANTHAPURAM -695 009
*ADDL.R4 ANIL KUMAR P.
AGED 62 YEARS
OP(C) Nos. 2099, 2098 & 2101 of 2018 :4:
2025:KER:8143
S/O. LATE M.PRABHAKARAN NAIR, RESIDING AT 'PRABHATHAM'
ABHRA-3, TC 22/315(1), ATTUKAL, MANACAUD P.O.,
THIRUVANANTHAPURAM - 695 009.
*ADDL.R5 AJITH KUMAR P.
AGED 61 YEARS
S/O. LATE M.PRABHAKARAN NAIR, RESIDING IN ABHRA-45, TC
22/761 (5) (OLD), TC/1394 (NEW), NEDIYAVILAKATHU VEEDU,
ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM - 695 009.
*ADDL.R6 ARUN KUMAR P.
AGED 55 YEARS
S/O. LATE M.PRABHAKARAN NAIR, RESIDING AT ABHRA-46, TC
22/761 (5), NEDIYAVILAKATHU VEEDU, ATTUKAL, MANACAUD
P.O., THIRUVANANTHAPURAM- 695 009
*(ADDITIONAL RESPONDENTS 3 TO 6 IMPLEADED AS PER ORDER
DATED 16.12.2022 IN I.A. 1/2022)
**ADDL.R7 SHAJI MANI
S/O. MANIKANTAN NAIR, RESIDING AT MUTHUVALLY HOUSE,
ATTUKAL, MANACAUD, THIRUVANANTHAPURAM - 695 009
**ADDL.R8 SHEEJA MANI
D/O. MANIKANTAN NAIR, MUTHUVALLY HOUSE, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM - 695 009
**(ADDITIONAL RESPONDENTS 7 AND 8 ARE IMPLEADED AS THE
LEGAL HEIRS OF DECEASED 2ND RESPONDENT AS PER ORDER
DATED 03/10/2024 IN IA 1/2023)
***ADDL.R9 LILLY MONY
AGED 71
W/O. LATE MANIKANTAN NAIR, MUTHUVALLY HOUSE, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM 695009
***[ADDITIONAL RESPONDENT NO. 9 IS IMPLEADED AS LEGAL
HEIR OF DECEASED SECOND RESPONDENT AS PER ORDER DATED
30.01.2025 IN IA 2/2024 IN OPC 2101/2018]
BY ADVS.
ABHIRAM B.H.
D.SAJEEV
K.B.PRADEEP
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30.01.2025,
ALONG WITH OP(C) NOS.2099/2018 & 2098/2018, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
OP(C) Nos. 2099, 2098 & 2101 of 2018 :5:
2025:KER:8143
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 30TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946
OP(C) NO. 2098 OF 2018
AGAINST THE ORDER/JUDGMENT DATED IN OS NO.494 OF 2002 OF
ASSISTANT SESSIONS COURT/I ADDITIONAL SUB COURT,THIRUVANANTHAPURAM
PETITIONER:
ATTUKAL BHAGAVATHI TEMPLE TRUST
ATTUKAL, MANACAUD P O, THIRUVANANATHAPURAM REPRESENTED
BY ITS SECRETARY, K SISUPALAN NAIR, S/O.K.KRISHNAN
NAIR, AGED 57 YEARS, ATTUKAL BHAGAVATHY TEMPLE TRUST,
ATTUKAL, MANACAUD P.O., THIRUVANANTHAPURAM, PIN-
695009., PIN - 695009
BY ADVS.
KISHORE D.
SMT.MINI GOPINATH, CGC
MEERA GOPINATH
MURALEEKRISHNAN (MALAKKARA) R.
RESPONDENTS:
1 C. MANIKANTAN NAIR
AGED 67 YEARS
S/O.CHELLAPPAN PILLAI, RESIDING MUTHUVALLY HOUSE,
ATTUKAL, MANACAUD, THIRUVANANTHAPURAM-695009 (DIED)
2 M.PRABHAKARAN NAIR,
AGED 76 YEARS
AGED 76 YEARS, S/O.MADHAVAN PILLAI, RESIDING AT
NEDIGAVILAKAM ATTUKAL, MANACAUD, THIRUVANANTHAPURAM.
(DIED), PIN - 695009
*ADDL.R3 LALITHAMBIKA DEVI K
AGED 84 YEARS
W/O. LATE M. PRABHAKARAN NAIR, RESIDING AT ABHRA 46, TC
22/761(5), NEDIYAVILAKATHU VEEDU, ATTUKAL, MANACAUD
P.O, THIRUVANANTHAPURAM 695009.
*ADDL.R4 ANIL KUMAR. P
S/O. LATE M. PRABHAKARAN NAIR, AGED 62 YEARS, RESIDING
AT 'PRABHATHAM' ABHRA-3, TC 22/315(1), ATTUKAL,
OP(C) Nos. 2099, 2098 & 2101 of 2018 :6:
2025:KER:8143
MANACAUD P.O., THIRUVANANTHAPURAM
*ADDL.R5 AJITHKUMAR. P.
S/O. LATE PRABHAKARAN NAIR RESIDING AT ABHRA-45, TC
22/761(5) (OLD), TC/1394(NEW) NEDIYAVILAKAM, ATTUKAL,
MANACAUD P.O., THIRUVANANTHAPURAM
*ADDL.R6 ARUNKUMAR P
AGED 55 YEARS
S/O. LATE M. PRABHAKARAN NAIR, RESIDING AT ABHRA 46, TC
22/761(5), NEDIYAVILAKATHU VEEDU, ATTUKAL, MANACAUD
P.O, THIRUVANANTHAPURAM 695009.
*(IMPLEADED AS ADDITIONAL R3 TO R6 VIDE ORDER DATED
16/12/2022 IN IA 1/2022)
**ADDL.R7 SHAJI MANI
S/O. MANIKANTAN NAIR, RESIDING AT MUTHUVALLY HOUSE,
ATTUKAL, MANACAUD, THIRUVANANTHAPURAM
**ADDL.R8 SHEEJA MANI
D/O. MANIKANTAN NAIR, MUTHUVALLY HOUSE, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM .
(ADDITIONAL RESPONDENTS 7 AND 8 ARE IMPLEADED AS THE
LEGAL HEIRS OF RESPONDENT 1 VIDE ORDER DATED 3.10.2024
IN I.A.NO.1/2023)
***ADDL.R LILLY MONY
9 W/O. LATE MANIKANTAN NAIR, MUTHUVALLY HOUSE, ATTUKAL,
MANACAUD, THIRUVANANTHAPURAM;
(ADDITIONAL R9 IS IMPLEADED AS THE LEGAL REPRESENTATIVE
OF DECEASED R1 VIDE ORDER DATED 30.01.2025 IN IA
2/2024)
BY ADVS.
K.B.PRADEEP
D.KISHORE
D.SAJEEV
LIGEY ANTONY
ABHIRAM B H B H
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30.01.2025,
ALONG WITH OP(C) NOS.2099/2018 & 2101/2018, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
OP(C) Nos. 2099, 2098 & 2101 of 2018 :7:
2025:KER:8143
VIJU ABRAHAM , J.
===========================
OP(C) Nos. 2099, 2098 & 2101 of 2018
============================
Dated this the 30th day of January, 2025
JUDGMENT
In all these cases the parties are the same and the date of the order impugned are also similar, therefore they are heard and disposed of together by a common order.
2. OP(C) No.2098 of 2018 is filed challenging the order in IA No.2545 of 2017 in OS No.494 of 2002, whereas OP(C) No. 2099 of 2018 is filed challenging the order in IA No.2543 of 2017 in OS No.493 of 2002, and OP(C) No. 2101 of 2018 is filed challenging the order in IA No.2544 of 2017 in OS No.335 of 2005 on the file of the 1st Addl. Sub Court, Thiruvananthapuram, whereby the request of the petitioner for amending the plaint under Order VI Rule 17 CPC was rejected. All these suits were filed by the petitioner herein for realization of money on account of loss caused by breach of trust committed by the defendants/respondents herein while they were acting as secretary and president of the plaintiff Trust. Petitioner's application seeking amendment was rejected by the orders impugned herein, wherein the Court held that the applications are hit by the proviso to Order VI Rule 17 CPC and are therefore not allowable. In these original petitions this Court is to consider OP(C) Nos. 2099, 2098 & 2101 of 2018 :8: 2025:KER:8143 whether any interference is called for on the orders issued by the trial Court wherein it has rejected the request of the petitioner for amendment of the plaint holding that said applications are hit by the proviso to Order VI Rule 7 of the CPC.
3. The learned Counsel appearing for the petitioner submits that the statutory intention of the Order VI Rule 17 CPC which contemplates that the amendment of pleadings can be permitted by the Court at any stage of proceedings and the same was not taken into consideration by the Court while passing the interim order. It is further contended that the proviso to Order VI Rule 17 CPC does not bar the Court from allowing the application for amendment even after the trial has commenced. It is the contention of the petitioner that the omission to incorporate the words 'by way of damages' in the plaint was realized only on 12.09.2017 while preparing for the final arguments and that the amendment is not prejudicial to the respondents, and therefore the amendment ought to have been allowed by the Court. The learned Counsel for the petitioner submits that a liberal approach must be taken by the Court in the matter of amendment and that the amendments are allowed even at the appellate stage. In support of the contentions petitioner relies on the judgment in Lakshmi and Others v. Yatheendradas and Others [2020 (2) KHC 204]. OP(C) Nos. 2099, 2098 & 2101 of 2018 :9:
2025:KER:8143
4. A detailed objection was filed by the defendants contending that if the amendment is allowed that will be permitting a barred claim to be agitated and that the nature and character of the suit will be totally changed. It is also contended that the 1 st defendant was in bed due to old age and the 2 nd defendant was hospitalised for treatment for a period of one month. It is also to be noted that both the defendants died during the proceedings and their legal heirs were impleaded in these proceedings.
5. It is to be seen that OS No.494 of 2002 and OS No.493 of 2002 were filed in the year 2002, whereas OS No.335 of 2005 was filed in the year 2005. Ext.P2 in all these original petitions is the written statement filed by the defendants, and a perusal of the written statement filed would reveal that it is filed in all the cases as early as in 2010, and a specific contention was taken by the defendant in the written statement that the suit is not maintainable in as much as the suit ought to have been filed as one for recovery of damages to be quantified by the Court on the basis of the estimation of the plaintiff. A perusal of the order impugned reveal that the evidence is over and the application seeking amendment was filed only when the case was posted for final hearing. The Court entered a finding that if the amendment is allowed the same would result in substituting the nature of the relief sought for in the OP(C) Nos. 2099, 2098 & 2101 of 2018 : 10 : 2025:KER:8143 plaint, and the matter now sought to be raised by way of amendment by the plaintiff was well within their knowledge and manifest the absence of due diligence on the part of the petitioner which disentitle them for the relief sought for. In the said background the Court has to consider the contention of the petitioner that they are entitled for amendment of the plaint as provided in Order VI Rule 17 CPC. Order VI Rule 17 of CPC deals with amendment of pleadings reads as follows:-
"17. Amendment of pleadings.--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: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
Though Rule 17 of Order VI of CPC mandates that the Court could at any stage of the proceedings allow either parties to alter or amend their pleadings so as to determine the real question of controversy between the parties, but a proviso has been added to the said Rule which provides that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence the party OP(C) Nos. 2099, 2098 & 2101 of 2018 : 11 : 2025:KER:8143 could not have raised the matter before the commencement of the trial. Admittedly, the trial of the case is over and the application was filed at a stage when the case was posted for hearing. Going by the proviso to Order VI Rule 17 CPC it is the duty of the petitioner to substantiate before the trial Court that inspite of due diligence the plaintiff could not raise the said matter before the commencement of trial. In the amendment petitions produced as Ext.P3 in these writ petitions the only reason stated for the delay in filing the same is that the omission was realised only on 12.09.2017 while preparing for final argument and that the omission was not deliberate or wilful. Admittedly, the lacuna in the pleadings and reliefs sought for in the plaint was brought to the notice of the plaintiff by the defendants itself in their written statement filed as early as on 2010. The application seeking amendment was filed only in the year 2017 i.e. after a lapse of almost seven years that too after the trial was over and the case was posted for hearing. There is absolutely no pleadings in the petition as to why inspite of due diligence the petitioner could not have raised the matter before the commencement of trial, other than to say that the omission is not deliberate or wilful and the same was noticed only on 12.09.2017 while preparing for the final argument.
OP(C) Nos. 2099, 2098 & 2101 of 2018 : 12 :
2025:KER:8143
6. The Apex Court in Basavaraj v. Indira [2024 KHC OnLine 6101] has considered a case with similar set of facts, wherein the lacuna which is sought to be clarified by way of an amendment was brought to the notice of the plaintiff by the defendants in their written statement, and the Court relying on the proviso to Order VI Rule 17 CPC held that the said amendment cannot be allowed in as much as there is not even a pleading in the application seeking amendment that due diligence was there at the time of filing of suit in not seeking reliefs prayed for by way of amendment, and what has been pleaded was only an oversight and the same cannot be accepted as a ground to allow the amendment in the pleadings at the fag end of the trial, especially when the same was brought to the notice of the plaintiff by the defendants in the written statement. Relevant potions of the said judgment reads as follows:-
"3. Learned counsel for the appellant submitted that in the case in hand, there was a family partition in Original Suit No. 401 of 2003 filed by Smt. Mahadevi and Smt. Sharnamma, wife and daughter-in-law respectively of defendant No.1/Shivasharnappa, impleading the plaintiffs and the defendants as party. A compromise decree dated 14.10.2004 was passed by the Lok Adalat, District Legal Services Authority, Gulbarga. Thereafter, respondents No. 1 and 2 filed a fresh suit in 2005 seeking partition of the ancestral property. Though in the suit pleading was there with reference OP(C) Nos. 2099, 2098 & 2101 of 2018 : 13 : 2025:KER:8143 to the earlier compromise decree, however for the reasons best known to the plaintiffs, no challenge was made to the same. As a result of the order passed by the High Court, the nature of the suit was changed from partition to declaration, which is impermissible.
3.1 Further in terms of proviso to Order VI Rule 17 CPC, no amendment could be allowed after commencement of the trial. In the case in hand, the suit was at the fag end, as fixed for arguments.
3.2 It was further submitted that the compromise decree was passed on 14.10.2004. In terms of the provisions of Order XXIII Rule 3 CPC, the same could be challenged only before the same Court and not before any other Court.
3.3 He further contended that there was a specific stand taken by the appellant/defendant No. 2 in the written statement that there being a compromise decree in existence, no relief may be admissible to respondents No. 1 and 2, unless that decree is challenged. The written statement was filed in August 2005, still no steps taken by the respondents No. 1 and 2 in that direction. Part of the suit property having been sold, an amendment was carried out in the plaint in July 2006 to implead the subsequent purchaser. Even at that stage, this relief was not sought.
3.4 It was further contended that the relief of declaration of compromise decree being null and void prayed for by way of amendment otherwise also was time barred as the compromise decree was passed on 14.10.2004. The application for amendment was filed on 08.02.2010. Even the court fee was sought to be affixed at the time of filing of application for amendment.OP(C) Nos. 2099, 2098 & 2101 of 2018 : 14 :
2025:KER:8143 3.5 The application filed by respondents No. 1 and 2 did not meet the pre-conditions laid down in Order VI Rule 17 CPC for permitting respondents No. 1 and 2 to amend the pleadings at the fag end of the trial. No due diligence was pleaded. All what was stated was that there was oversight on the part of respondents No. 1 and 2/plaintiffs.
3.6 Referring to the parties who were there in the compromise decree, it was argued that some of them are not parties in the suit in question, hence otherwise also challenge to the compromise decree may not be maintainable.
3.7 In support of the arguments, reliance was placed upon the judgments of this Court in Revajeetu Builders and Developers v. Narayanaswamy and sons and others 2009(10) SCC 84 and Vidyabai and others v. Padmalatha and another, 2009 (2) SCC 409.
...
8. Proviso to Order VI Rule 17 CPC provides that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the case in hand, this is not even the pleaded case of respondents No. 1 and 2 before the Trial Court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of the respondents No. 1 and 2/plaintiffs.
..."OP(C) Nos. 2099, 2098 & 2101 of 2018 : 15 :
2025:KER:8143 This Court in Gireesh Kumar v. Sanalkumar and Another [2022 ICO 2665] while dealing with Order VI Rule 17 CPC and held in paragraphs 9 and 10 as follows:-
"9. It is true that the parties to a civil suit can carryout amendment of their respective pleadings and the intent behind Order 6 Rule 17 of the Code of Civil Procedure is to address the real grievance of the parties and to decide the dispute finally. Thus, all amendments which are necessary in the interest of justice shall be allowed to address the matter in controversy and to give a quietus to the litigation. However, the liberal view in the matter of amendment is restricted by the proviso to Order 6 Rule 17 when amendment got canvassed, after commencement of trial. Proviso to Order 6 Rule 17 imposes a duty on the Court when amendment sought for after commencement of trial and it is provided therein that no application for amendment shall be allowed, after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial.
10. In this matter, as rightly argued by the learned counsel for the respondents and as could be read out from the averments in the affidavit in support of the amendment petition, no foundation to see the necessity of amendment sought for as item No.3 in the petition could be found out though the said amendment was canvassed after commencement of trial. In this context, it is held that a party to a civil suit cannot seek amendments to their pleadings without narrating and justifying sufficient foundation to get the amendment allowed and without convincing the Court OP(C) Nos. 2099, 2098 & 2101 of 2018 : 16 : 2025:KER:8143 regarding the necessity of amendment. Similarly, it is not permissible to allow amendments without justifying the same in the affidavit in support of the amendment petition. It is held further that after commencement of trial, without complying the satisfaction mandated by proviso to Order 6 Rule 17 CPC, amendment cannot be allowed."
The contention of the petitioner based on Lakshmi and Others' case cited supra also cannot be accepted. Even in that judgment this Court has held that the trial Court must examine before allowing an application for amendment after the trial has commenced whether it is intended to delay or frustrate the suit and if the party seeking such amendment has conducted himself until then diligently but still could not have sought the amendment before the commencement of the trial.
7. In view of the above, I am of the opinion that the judgments referred above will squarely apply in the facts and circumstances of the present case. In view of the same, this Court is not inclined to interfere with the well considered order of the trial Judge impugned herein.
Accordingly the above original petitions are dismissed.
Sd/-
VIJU ABRAHAM JUDGE sbk/-
OP(C) Nos. 2099, 2098 & 2101 of 2018 : 17 :
2025:KER:8143 APPENDIX OF OP(C) 2101/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.335.2005 ON THE FILE OF I ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS N O.S.335/2005 ON THE FILE OF I ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.2544/2017 IN O.S.335/2005.
EXHIBIT P4 TRUE COPY OF THE STATEMENT OF OBJECTION FILED BY THE COUNSEL FOR THE DEFENDANTS TO EXHIBIT P3.
EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY 2ND RESPONDENT TO EXHIBIT P3.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 23/06/2018 IN I.A.2544/2017 IN O.S.335/2005 ON THE FILE OF I ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.
OP(C) Nos. 2099, 2098 & 2101 of 2018 : 18 :
2025:KER:8143 APPENDIX OF OP(C) 2098/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PAINT IN O.S.494/2002 ON THE FILE OF 1ST ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.NO.494 /2002 ON THE FILE OF 1ST ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA.NO,2545/2017 IN O.S.494/2002 EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY 1ST RESPONDENT TO EXHIBIT P3.
EXHIBIT P4 TRUE COYP OF THE STATEMENT OF OBJECTION FILED BY THE COUNSEL FOR THE DEFENDANTS TO EXHIBIT P3.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 23.06.2018 IN I.A.NO.2545/2017 IN O.S.NO.494/2002 ON THE FILE OF 1-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.
OP(C) Nos. 2099, 2098 & 2101 of 2018 : 19 :
2025:KER:8143 APPENDIX OF OP(C) 2099/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS 493/2002 ON THE FILE OF 1-ADDITIONAL SUB COURT,THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE AMENDED WRITTEN STATEMENT FILED BY THE DEFENDANTS IN OPS 493/2002 ON THE FILE OF 1-ADDITIONAL SUB COURT,THIRUVANANTHAPURAM EXHIBIT P3 TRUE COPY OF THE ASFFIDAVIT AND PETITION IN I.A 2543/2017 IN OS 493/2002.
EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY 1ST RESPONDENT TO EXHIBIT P3.
EXHIBIT P4 TRUE COPY OF THE STATEMENT OF OBJECTION FILED BY THE COUNSEL FOR THE DEFENDANTS TO EXHIBIT P3.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 23.06.2018 IN I.A.NO.2543/2017 IN O.S.NO.493/2002 ON THE FILE OF 1-ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.