IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 18681 of 2009(O) ------------------------------------ OS.182/2006 of II ADDL.SUB COURT,KOZHIKODE ................................................. PETITIONER(S): ---------------------- 1. VADAKKOTH CHEMBU VALAPPIL CHANDRASEKHARAN NAIR, AGED 67 YEARS, S/O.LAKSHMIKUTTY @ MALU AMMA, AITTADIYIL, MAYANADU DESOM, P.O.MAYANADU, KOZHIKODE. 2. VADAKKOTH CHEMBU VALAPPIL PRABHAKARAN NAIR, AGED 59 YEARS, S/O.LAKSHMIKUTTY @ MALU AMMA, CHEMBU VALAPPIL, KANNADIKKAL, VENGERI AMSOM, VARATHUR DESOM, P.O.VENGERI, KOZHIKODE. 3. VADAKKOTH CHEMBU VALAPPIL SATHYAVATHI AMMA, AGED 56 YEARS. ,D/O.LAKSHMIKUTTY @ MALU AMMA, P.O.VENGERI, VENGERI AMSOM, VARATHUR DESOM. 4. C.V.SAJI, AGED 35 YEARS, W/O.UNNIKRISHNAN, KALATHIL HOUSE, P.O.GURUVAYURAPPAN COLLEGE, POKKUNNU AMSOM DESOM. BY ADV. SRI.N.M.MADHU SMT.C.DEVIKA RANI KAIMAL RESPONDENT(S): ---------------------- 1. VADAKKOTH CHEMBU VALAPPIL DEVAKI AMMA, AGED 73 YEARS, D/O.LAKSHMIKUTTY @ MALU AMMA, PADINHARE OZHAPPOYIL HOUSE, KURUVATTUR AMSOM, PAYIMBRA DESOM, P.O.PAYIMBRA, KOZHIKODE. 2. C.V.SASIDHARAN, AGED 51 YEARS, S/O.DEVAKI AMMA, DO. DO. DO. 3. C.V.SURESAN, AGED 45 YEARS, S/O.DEVAKI AMMA, DO. DO. DO. WP(C) NO. 18681/2009 4. VADAKKOTH CHEMBU VALAPPIL SAROJINI AMMA, AGED 70 YEARS, D/O.LAKSHMIKUTTY @ MALU AMMA, KALLUVETTUKUZHIYIL HOUSE, VENGERI AMSOM, VARATHUR DESOM, P.O.VENGERI. 5. C.V.GEETHA, AGED 49 YEARS, D/O.SAROJINI AMMA, THIPPILIKKATTU, SREEPADAM, KANNADIKKAL, VENGERI AMSOM, VARATHU DESOM, P.O.VENGERI, KOZHIKODE. 6. C.V.LATHA, AGED 44 YEARS, D/O.SAROJINI AMMA, KOODATHINGAL, PADINJATTUMURI DESOM, KAKKODI P.O., KOZHIKODE. 7. C.V.SAJITH, AGED 41 YEARS, S/O.SAROJINI AMMA, KALLUVETTUKUZHIYIL HOUSE, VENGERI AMSOM, VARATHUR AMSOM, KOZHIKODE. 8. VADAKKOTHU CHEMBU VALAPPIL KAMALA AMMA, W/O.GOPALAN NAIR, 63 YEARS, (D/O.LAKSHMIKKUTTY @ MALU AMMA), NADUVILERI HOUSE, KANNADICKAL, VENGERI AMSOM, VARATHUR DESOM. 9. C.V.NISHA, 43 YEARS, W/O.SATHYACHANDRAN, (D/O.KAMALA AMMA), NITHYASREE, MANIPURAM P.O., KODUVALLY AMSOM DESOM. 10. C.V.BINDU, 40 YEARS, W/O.UDAYAKUMAR, KOLAYIL, D/O.KAMALA AMMA, KARIKKAMKULAM, KARAPARAMBU P.O., NEDUNGOTTUR AMSOM DESOM. 11. C.V.SUJA, AGED 35 YEARS, W/O.NANDAKUMAR, D/O.KAMALA AMMA, KANICHADATH HOUSE, P.O.PALATH, PALATH AMSOM DESOM. 12. C.V.SHEEJA, AGED 36 YEARS, W/O.DEVADASAN, D/O.SATHYAVATHI AMMA, NANDANAM, PERINGALAM P.O., KUNNAMANGALAM AMSOM DESOM. 13. VADAKKOTH CHEMBUVALAPPIL PRABHAVATHI AMMA, AGED 56 YEARS, D/O.PADMINI AMMA, VETGTOTTUMMAL HOUSE, EDAKAKARA AMSOM DESOM, CHELANNUR P.O. 14. C.V.VASANTHA AMMA, AGED 53 YEARS, D/O.PADMINI AMMA, PRAVEENA, P.M.KUTTY ROAD, KARAPARAMBU P.O., KATCHERI AMSOM DESOM. WP(C) NO. 18681/2009 15. C.V.VIJAYAN, AGED 50 YEARS, S/O.PADMINI AMMA, PADMAPURAM, MAKKADA AMSOM DESOM, P.O.MAKKADA, KOZHIKODE. 16. C.V.SUBHASHINI, AGED 46 YEARS, D/O.PADMINI AMMA, DO. DO. DO. 17. C.V.PADMAJA, AGED 39 YEARS, W/O.SURESH, D/O.PADMINI AMMA, SUPADMAM, ERAVANNUR P.O., ERAVANNUR AMSOM DESOM. 18. VADAKKOTHU CHEMBU VALAPPIL RAVEENDRAN, AGED 53 YEARS, S/O.DAKSHAYANI AMMA, ABHINAVAM, KANNADIKKAL, P.O.VENGERI, VENGERI AMSOM, VARATHUR DESOM. 19. VADAKKOTHU CHEMBU VALAPPIL RASMI, AGED 36 YEARS, D/O.PRABHAVATHI AMMA, RESIDING AT VETTOTTUMMAL, EDAKKARA AMSOM DESOM, KOZHIKODE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tga S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 18681 OF 2009 O ```````````````````````````````````````````````````` Dated this the 3rd day of July, 2009 J U D G M E N T Petitioners are defendants 1, 6, 7 and 9 in OS.No.180/06 on the file of the Sub Court, Kozhikode. The respondents are the plaintiffs and other defendants in the suit. Suit is one for partition. After the commencement of the trial, the plaintiff moved an application to include one item of property also in the schedule which was objected to by some of the defendants. The learned Sub Judge, after hearing both parties, allowed the amendment application. Ext.P5 is the copy of that order. Impeaching the propriety and correctness of that order, the petitioners have approached this court and filed this writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. Having regard to the facts and circumstances presented with reference to Ext.P5 order impugned in the writ petition, I find that notice to the respondents is not necessary and it is dispensed with. WPC.18681/09 : 2 : 3. I heard the learned counsel for the petitioner. Inviting my attention to paragraph 8 of the plaint, copy of which is produced as Ext.P1, it is submitted by the counsel that the plaintiffs have deliberately left out the item subsequently sought to be included in the schedule from the purview of the suit and so much so, this was a case where the bar under the proviso to Order 6 Rule 17 applied with all force showing that the amendment sought for was within the knowledge of the plaintiff even at the time of filing of the suit. Emphasising on the impact of the proviso in granting amendment, the learned counsel submitted that unless the court comes to the conclusion that in spite of due indulgence the party could not have raised the matter before the commencement of trial the proposed amendment cannot be allowed. Reliance is also placed upon the decision rendered by the apex court in Vidyabai Vs. Padmalatha [2009 (1) KLT SN 14 (C.No.13) SC] to contend that Ext.P5 order is unsustainable in law. After perusing Ext.P5 order, I am unable to agree with the submissions made by the counsel. The learned Sub Judge, after appreciating the controversy raised for adjudication in the suit and WPC.18681/09 : 3 : taking note that the suit is one for partition exercised his discretion in favour of the plaintiff allowing the amendment sought for. True, in the plaint, it is stated that some items of properties derived by inheritance are left out from the suit. Whether the item now sought to be included falls within those covered by the averments in paragraph 8 there is no material. Even if that be so, so long as the defendants are not having a case that the item sought to be included is not divisible and does not come within the joint ownership of the parties no fault could be found with the court for permitting the plaintiff to amend the suit to incorporate that item also for an effective adjudication of all controversies to sever the joint ownership over the properties between the parties. In considering an amendment application the most cardinal principle is whether such amendment is necessary for the purpose of determining the real controversy between the parties. No benefit is going to come to the defendants if the property which is sought to be included by way of amendment is left out of the suit. Any sharer can file a separate suit so long as it continues under joint ownership. In Eapen Antony Vs. Joseph [2009 (2) KLT 849], this WPC.18681/09 : 4 : court has held that amendment can be allowed after closure of the evidence and at any stage before the judgment if it does not alter the nature of suit or cause prejudice to the opposite side. What prejudice is being caused to the defendants by the proposed amendment in including one item more in the schedule is a mystery. Delay in moving the amendment appears to be the sole reason for the objection and that objection is taken care of the learned Sub Judge by ordering the plaintiff to pay cost to the contesting defendants. The applicability of the decision Vidyabai Vs. Padmalatha [2009 (1) KLT SN 14(C.No.13) SC] relied by the learned counsel to the facts of the case cannot be analysed as the full text is not available. But, it is seen from the brief notes that the defendant had sought for amendment of his written statement in a suit for specific performance setting forth an entirely new case after the commencement of the trial. No decision can be read in isolation without reference of the facts in considering its applicability to a different case. At any rate, in my view having regard to the fact the present suit is one for partition and if an item of the property is left out it would only cause irreparable injury of WPC.18681/09 : 5 : the parties and perhaps steal precious time of the court also later by another suit at the instance of the one or other sharers the discretion exercised by the learned Sub Judge in allowing the amendment application has to be treated as proper, valid and correct. Writ petition is dismissed. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge