Kerala High Court
OP(C)/4257/2012 of MANOJ MOHAN Vs LEELAMMA KUNJACHAN on 31 December 2012
COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934 OP(C).No. 4257 of 2012 (O) -------------------------- IA NO.1642/2012 IN OS.241/2009 of MUNSIFF COURT,CHENGANNUR PETITIONER(S): ------------- MANOJ MOHAN,
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934
OP(C).No. 4257 of 2012 (O)
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IA NO.1642/2012 IN OS.241/2009 of MUNSIFF COURT,CHENGANNUR
PETITIONER(S):
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MANOJ MOHAN, KADUVINAL HOUSE, CHERIYANAD KIZHAKKUM MURI, CHERIYANAD VILLAGE, CHENGANNUR TALUK.
BY ADV. SRI.N.ASHOK KUMAR
RESPONDENT(S):
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1. LEELAMMA KUNJACHAN VALIYAPARAMBIL HOUSE, ARIYUNNISSERY MURI, CHERIYANAD VILLAGE, CHERIYANAD P.O., CHENGANNUR, PIN - 689511.
2. AMMUKUTTY VALIYAPARAMBIL, ARIYUNNISSERY MURI, CHERIYANAD P.O. CHENGANNUR, PIN PRESENT ADDRESS-KARUVATHOTTATHIL HOUSE PULLAMKODU P.O., KALIKAVU VILLAGE CHEKKADU PANCHAYAT, MALAPPURAM DISTRICT, PIN - 676525.
R1 & R2 BY ADV. SRI.VARGHESE C.KURIAKOSER1 & R2 BY ADV. SRI.G.MANU KRISHNAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 31-12-2012, THE COURT ONTHE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO.4257/2012
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT P1- TRUE COPY OF PLAINT IN O.S.NO. 241/2009 OF MUNSIFF'S COURT,CHENGANNUR DATED 14-8-2009.
EXHIBIT P2- TRUE COPY OF WRITTEN STATEMENT DATED 30-09-2009 IN O.S.NO. 241/2009 OFMUNSIFF'S COURT, CHENGANNUR.
EXHIBIT P3- TRUE COPY OF IMPLEADING PETITION AS I.A.NO. 1261/2010 DATED 31-8-2010 INOS. 241/09 OF MUNSIFF'S COURT, CHENGANNUR.
EXHIBIT P4- TRUE COPY OF AMENDMENT PETITION IN I.A 1642/2012 IN OS. 241/09 OFMUNSIFF'S COURT, CHENGANNUR.
EXHIBIT P5- TRUE COPY OF OBJECTION IN EXT. P-4 I.A. 1642/2012 IN OS. 241/09 MUNSIFF'SCOURT, CHENGANNUR.
EXHIBIT P6- TRUE COPY OF ORDER IN I.A. 1642/2012 IN OS. 241/2009 OF MUNSIFF'S COURT,CHENGANNUR DATED 23-11-2012.
RESPONDENTS' EXHIBITS: NIL
THOMAS P. JOSEPH, J.
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O.P.(C). No.4257 of 2012
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Dated this the 31[st] day of December, 2012.
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JUDGMENT
This Original Petition is in challenge of Ext.P6, order dated 23.11.2012dismissing I.A.No.1642 of 2012 in O.S.No.241 of 2009 of the Munsiff's Court,Chengannur.
2. The petitioner/1[st] plaintiff along with the 2[nd] plaintiff filed the suit fora declaration of title and recovery of possession. According to the petitioner andthe 2[nd] plaintiff, the latter being the seniormost female member of the family wasentitled to possess the property pursuant to the Family Udambadi of the year,1124 ME. Hence the petitioner and the 2[nd] plaintiff prayed that title andpossession of the 2[nd] plaintiff be declared and that the petitioner/1[st] plaintiff maybe allowed to recover possession of the property on behalf of the 2[nd] plaintiff.
3. The 2[nd] plaintiff died on 12.05.2010. Following that the 3[rd] plaintiffwas impleaded claiming thatshe is the seniormost female member of the familyentitled to possess and enjoy the property. After the trial commenced, thepetitioner filed I.A.No.1642 of 2012 (Ext.P4, application) to amend the plaint tostate that title and possession of the 3[rd] plaintiff be declared and that thepetitioner/1[st] plaintiff may be allowed to recover possession of the property onbehalf of the 3[rd] plaintiff.
4. Ext.P4, application was opposed by the respondents. They claimedthat the 3[rd] plaintiff has no connection with the deceased 2[nd] plaintiff and thatthere is no such person even.
5. The trial court by Ext.P6, order dismissed the application referringto the proviso to Rule 17 of Order VI of the Code of Civil Procedure (for short,“the Code”). That order is under challenge.
6. The learned counsel for the petitioner submits that by aninadvertent omission the circumstances which enabled the petitioner and the 3[rd]plaintiff to get over the proviso to Rule 17 of Order VI of the Code could not beaverred in the affidavit in support of Ext.P4, application. It is also submitted thatthe prayer was only to substitute the name of 3[rd] plaintiff in the place of 2[nd]plaintiff so far as the relief is concerned.
Conclusion
7. Learned counsel for the contesting respondents opposed therequest and submitted that at any rate, the proviso to Rule 17 of Order VI of theCode is not complied.
8. In view of the proviso to Rule 17 of Order VI of the Code, it wasnecessary for the petitioner to state reasons which enabled him to file theapplication for amendment even after commencement of the trial. That has notbeen done.
OP(C) No.4257/2012
9. Having regard to the circumstances stated and the nature of theamendment sought for, I am inclined to give the petitioner opportunity to statethe reasons which enabled him to file the application for amendment aftercommencement of the trial and why the amendment was not sought for earlier.
Resultantly the Original Petition is allowed as under:
i.Ext.P6, order dated 23.11.2012 on I.A.No.1642 of 2012 inO.S.No.241 of 2009 of the Munsiff's Court, Chengannur is set aside.
ii.I.A.No.1642 of 2012 is remitted to the trial court for freshdecision after giving the petitioner or other person concerned file appropriateadditional affidavit stating why the request for amendment was not sought forbefore commencement of trial.
iii.The trial court shall dispose of I.A.No.1642 of 2012 on itsmerit after hearing the parties concerned.
THOMAS P.JOSEPH, Judge.
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