Kerala High Court
Suji K vs Usha K on 23 January, 2025
1
OPC 2988/2024
2025:KER:11197
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
THURSDAY, THE 23RD DAY OF JANUARY 2025 / 3RD MAGHA, 1946
OP(C) NO. 2988 OF 2024
I.A.6/2024 IN OS NO.11 OF 2020 OF ASSISTANT SESSIONS COURT/SUB
COURT/COMMERCIAL COURT, QUILANDY
PETITIONER/S:
1 SUJI K, AGED 52 YEARS, JEEVA HOUSE, KIZHAKKUMMURI AMSOM,
PADINHATTUMMURI DESOM, KIZHAKKUMMURI PO, KOZHIKODE, PIN - 673611
2 SUDHEESH K, AGED 50 YEARS, DWARAKA HOUSE, VATTOLI BAZAR PO, BALUSSERY,
KOZHIKODE, PIN - 673612
BY ADVS.ARUNKUMAR P.
BALAGOPALAN P.
ZUBAIR PULIKKOOL
MINI K. KOYERI
RESPONDENT/S:
1 USHA K, AGED 75 YEARS, DWARAKA HOUSE, VATTOLY BAZAR PO, BALUSSERY ,
KOZHIKODE, PIN - 673612
2 PADMARAJAN K, AGED 67 YEARS
LAKSHMIKRIPA HOUSE(KAROL), VATTOLY BAZAR PO, BALUSSERY, KOZHIKODE, PIN
- 673612
3 PRAMODKUMAR K, AGED 62 YEARS, AMRUTHAM HOUSE,GURUVAYURAPPAN COLLEGE
PO, MATHARA, KOZHIKODE, PIN - 673014
4 BINEETHA, AGED 42 YEARS
VALIYA VEETIL, BALUSSERY PO, KOZHIKODE, PIN - 673612
5 SAHNA THEJUS, AGED 44 YEARS, KOROTH HOUSE, VATTOLI BAZAR, BALUSSERY
PO, KOZHIKODE, PIN - 673612
BY ADVS.
V.V.SURENDRAN
R.SUDHISH
M.MANJU(K/003562/1999)
P.A.HARISH(K/000392/1991)
DONA PAUL(K/001661/2018)
SHILPA K.(K/1843/2023)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.01.2025, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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OPC 2988/2024
2025:KER:11197
JUDGMENT
(Dated this 23rd January 2025) This Original Petition is filed to set aside Ext.P9. Petitioners are the plaintiffs and respondents are the defendants in the Original Suit. The suit is one for partition.
2. The case of the plaintiffs/petitioners is that Plaint B schedule property is a thavazhi property and according to marumakkathayam law, every child of female members of a thavazhi will acquire right in the thavazhi property, by birth. Thus, the petitioners/plaintiffs (being the children of female member of thavazhi) acquired birth right over the Plaint B schedule property. Therefore, plaintiffs want to get their separate share by partitioning the plaint schedule property.
3. The 1st defendant/1st respondent herein entered appearance and filed written statement admitting the plaint averments. Defendant Nos.2 to 5/respondent Nos.2 to 5, the contesting defendants, disputed the partible nature of the plaint schedule properties. They would say that the plaint schedule properties are already partitioned and all shareholders got their respective share. Defendant Nos.2 and 3 have transferred some of 3 OPC 2988/2024 2025:KER:11197 the properties to defendant Nos.4 and 5, and after partition and subsequent transfer, defendants/respondents are in actual possession of their respective properties. Even though the contesting defendants referred to various documents in their written statement, in support of their contentions, none of them were produced along with their written statement.
4. Thereafter, the suit was listed for plaintiff's evidence and the 1 st plaintiff was examined as PW1. While cross examining PW1, defendant Nos.2 and 3 confronted 7 documents and were marked as Ext Nos.B1 to B7. Those documents were not produced by the defendant Nos.2 and 3 along with their written statements. Subsequently, plaintiffs/petitioners examined those documents and found that those are only sham documents without any legal validity.
5. Out of this circumstance, plaintiffs/petitioners herein, filed an amendment application as I.A.6/2024, for amending the plaint to explain the invalidity of the documents marked as Exhibit B1 to B7. The said I.A for amending the plaint, was heard and dismissed by the Subordinate Court, Koyilandy, against which present the O.P(C) is filed. 4 OPC 2988/2024
2025:KER:11197
6. Heard counsels for either sides.
7. The counsel for the petitioner argues that the production of the documents marked as Ext.B1 to B7, was highly belated which caused much prejudice to the petitioners/plaintiffs, since they had no opportunity to peruse them before trial. It ought to have been produced by defendants along with their written statements. Also, this production, according to the petitioner is a subsequent event, which the petitioners/plaintiffs could not foresee. Moreover, the counsel for the petitioners/plaintiffs states that the proposed amendment neither changes the nature of the suit nor does it cause any prejudice to the defendants/respondents.
8. When PW1 was cross examined by the contesting defendants, in view of the above documents, it was contended that the plaintiffs are estopped from claiming that the property is having the character of joint family property. Also, the plaintiffs were under the impression that the defendants would mount the witness box and will be subject to cross examination. However, to the surprise of the plaintiffs, the contesting defendants did not enter the witness box and therefore, the questions to prove the custom and supporting things couldn't be put to the defendants 5 OPC 2988/2024 2025:KER:11197 therein.
9. In such a scenario, it has become necessary to incorporate some pleadings explaining the matters already pleaded, for a fair adjudication of the case and is necessary for determining the real question in controversy between the parties. The counsel for the petitioners/plaintiffs also argues that the amendment sought for, if allowed, will not alter the nature of the suit or does it cause any serious prejudice to the defendants, but on the other hand, these pleadings are highly necessary to have a finality in the matter. They also pointed out that this amendment could not be raised before, in spite of due diligence and thus, it is only to be allowed in the interest of justice.
10. The counsel for the respondents vehemently opposed the said contentions raised by the petitioners. Defendants 2 and 4 filed their objections to Ext P6 as Ext Nos.P7 and P8 respectively, wherein it is stated that the custom in the family of the petitioner, recognizing right by birth is denied and it is being put up by the petitioners only to make out that the plaint schedule properties are thavazhi properties. It is also averred that the suit itself was filed suppressing material facts and when the said facts 6 OPC 2988/2024 2025:KER:11197 were revealed by the contesting defendants, the plaintiffs/petitioners have come up with an amendment petition to fill up the lacuna occurred.
11. Moreover, those facts which are sought to be incorporated, were already known to the plaintiffs/petitioners even prior to the filing of the suit and more particularly, the contesting defendants have already pleaded in their written statements the said facts. Although, the facts sought to be incorporated by way of amendment was already known to the plaintiffs/petitioners, no amendment application was filed till date. Hence, exercise of due diligence cannot be assumed on their side in filing Ext P6, that too when the case was posted for hearing. Therefore, the counsel for the plaintiffs/petitioners submits that the amendment application is liable to be dismissed.
12. Going through the 3rd para in the affidavit filed along with Ext P6, it is evident that the plaintiffs/petitioners had notice regarding the deeds marked during the cross examination, through the written statement filed by defendants 2 and 3. The main contention taken up by the defendants in the written statements was that in view of the above documents, the plaintiffs are estopped from contending that the property 7 OPC 2988/2024 2025:KER:11197 th th is still a joint family property. A perusal of 4 and 5 paras show that the plaintiffs were aware that mother and father of the plaintiffs were gifted property by virtue of abovesaid deeds. Thus, due diligence could not be attributed in presenting the amendment application, at a later stage of the suit.
13. Regarding the production of documents by the defendants at the time of cross examination, it is expressly provided under Order 8 Rule 1-A CPC that the defendant shall produce the documents, upon which he relies or bases his claim, along with the written statement. However, clause 4 of the said provision carves out an exception to the above rule that it shall not apply to documents produced for the cross-examination of the plaintiff's witnesses or those used for the purpose of refreshing memory.
14. In Bhima Jewellery and Diamonds (P) Ltd. v. O. Sandeep Kumar; reported in (2020 KHC 550), this court held that the law entitles a party to contradict a witness for the opposite side with a document not produced earlier, along with the written statement since an exception is carved out in clause 4 of Order 8 Rule 1-A. When the whole purpose is to 8 OPC 2988/2024 2025:KER:11197 contradict a witness, it becomes unnecessary to expatiate that the element of surprise is crucial and the object behind the cross-examination itself will be defeated as the witness will then modulate his response accordingly by pre-preparation, if the documents were received beforehand.
15. Also, relying on the dictum laid down by the Apex Court in Mohammed Abdul Wahid v. Nilofer; in 2023 SCC Online SC 1672; wherein, similar issue has been positively answered as to the permissibility of the production of documents at the time of cross examination.
16. It is pertinent to note that the provision under Order 8 Rule 1-A (4) exempts those documents that are produced for the cross examination of the plaintiff's witnesses alone. However, in the present case, it is not the witness of the plaintiff but the plaintiff himself, who was confronted with the documents. Thus, the question whether 'plaintiff' comes within the purview of the abovesaid exception comes into play and reliance is placed on Mohammed Abdul Wahid (Supra), wherein it is categorically stated that there is no difference between a party to a suit as 9 OPC 2988/2024 2025:KER:11197 a witness and a witness simpliciter, as both of them needs to be construed similarly when standing on the same pedestal for giving evidence.
17. In this original petition, the deeds sought to be incorporated by way of amendment, were already known to the plaintiffs/petitioners and hence it cannot be said that they could not have raised these matters earlier, in spite of due diligence. Moreover, nothing is stated in Ext P6 so as to derive that due diligence was exercised from the part of the said plaintiffs/petitioners.
18. The proviso to Order 6 Rule 17 empowers the court to allow such amendment applications, where the court is of the opinion that despite due diligence the party could not have raised the matter before the commencement of trial. In Basavaraj v. Indira (2024 SCC Online SC
208); the apex court has held that due diligence is to be satisfied by the courts dealing with the amendment applications filed at the far end of the trial and the burden is always on the party seeking amendment.
19. Admittedly, the matters sought in the present amendment application was within the knowledge of the plaintiffs/petitioners and hence needless to say, the proposed amendment is a belated alternative 10 OPC 2988/2024 2025:KER:11197 experimental exercise to clarify the lacuna occurred during cross examination. Hence, considering the above circumstances, I am inclined to hold that the proposed amendment is hit by the proviso to Order 6 Rule 17 CPC and therefore, it is appropriate to hold that Ext P9 is in order and hence, no interference is warranted with.
In the result, this O.P.(C.) is dismissed.
Sd/- BASANT BALAJI JUDGE dl/ 11 OPC 2988/2024 2025:KER:11197 APPENDIX OF OP(C) 2988/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN OS 11/2020 DATED 13-2- 2020 PENDING BEFORE THE HONORABLE SUBORDINATE COURT, KOYILANDY Exhibit P2 THE TRUE COPY OF THE WRITTEN STATEMENT DATED 11- 9-2020 FILED BY THE 1ST DEFENDANT IN OS 11/2020 PENDING BEFORE THE HONORABLE SUBORDINATE COURT, KOYILANDY Exhibit P3 THE TRUE COPY OF THE WRITTEN STATEMENT DATED 22- 12-2020 FILED BY DEFENDANT 2 AND 3 IN OS 11/2020 PENDING BEFORE THE HONORABLE SUBORDINATE COURT, KOYILANDY Exhibit P4 THE TRUE COPY OF THE WRITTEN STATEMENT DATED 28- 1-2023 FILED BY THE 4TH DEFENDANT IN OS 11/2020 PENDING BEFORE THE HONORABLE SUBORDINATE COURT, KOYILANDY Exhibit P5 THE TRUE COPY OF THE WRITTEN STATEMENT DATED 16- 3-2023 FILED BY THE 5TH DEFENDANT IN OS 11/2020 PENDING BEFORE THE HONORABLE SUBORDINATE COURT, KOYILANDY Exhibit P6 THE TRUE COPY OF THE AMENDMENT APPLICATION DATED 26-2-2024 BEARING NUMBER IA 6/2024 IN OS 11/2020 PENDING BEFORE THE HONORABLE SUBORDINATE COURT, KOYILANDY Exhibit P7 THE TRUE COPY OF THE COUNTER AFFIDAVIT DATED 6-3- 2024 FILED BY DEFENDANT NUMBER 2 IN IA 6/2024 OF OS 11/2020 PENDING BEFORE THE HONORABLE SUBORDINATE COURT, KOYILANDY Exhibit P8 THE TRUE COPY OF THE COUNTER STATEMENT DATED 6-3- 2024 FILED BY DEFENDANT NUMBER 4 IN IA 6/2024 OF OS 11/2020 PENDING BEFORE THE HONORABLE SUBORDINATE COURT, KOYILANDY Exhibit P9 THE TRUE COPY OF THE ORDER OF THE HONORABLE SUBORDINATE COURT, KOYILANDY DATED 8/11/2024 IN IA 6/2024