IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 WP(C).No. 12759 of 2008(R) -------------------------- OS.107/1998 OF I ADDL.M.C.,TRIVANDRUM .................... PETITIONER: ----------------- K.C.ENOSE, S/O.K.E.CHERIYAN, AGED 67, KANDATHIL, TC 25/3356, CHIRAKKULAM ROAD, TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS: --------------------- 1. MEENAKSHY AMMA, "MEENA", PLOT NO.10, DEVI NAGAR, PALKULANGARA, TRIVANDRUM. 2. JAYACHANDRAN ALIAS BABU, "MEENA", PLOT NO.10, DEVI NAGAR, PALKULANGARA, TRIVANDRUM. BY ADV. SRI.V.SURESH FOR R2 SRI.G.SUDHEER FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioner’s Exhibits:- Exhibit-P1:- True copy of the plaint in O.S. No.107/1998 on the file of Munsiff Court, Trivandrum. Exhibit-P2:- True copy of the written statement in O.S. No.107/1998 on the file of Munsiff Court, Trivandrum Exhibit-P3:- True copy of the amendment application in O.S. No.107/1998 on the file of Munsiff Court, Trivandrum Exhibit-P4:- True copy of the objection to Ext.P3 Exhibit-P5:- True copy of the order dated 4/3/2008 in I.A. No.9192/07 in OS 107/98 on the file of Addl. Munsiff Court, Trivandrum Exhibit-P6:- True copy of the judgment dated 16/1/2007 in WP(C) No.35123/04 of this Court. //True Copy// P.A. to Judge M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C)No. 12759 of 2008 ------------------------------------------ Dated this the 11th day of June, 2008 JUDGMENT Petitioner is the 11th defendant in O.S.107 of 1998 on the file of Munsiff Court, Thiruvananthapuram. Suit was for declaration of the title of plaintiffs and defendants 1 to 9 to the plaint schedule property having an extent of 18.320 cents in Survey No.2623/67/A2. After the commissioner submitted a report, respondents filed an application to set aside the report, which was allowed by the trial court, which was challenged before this court in WP(C)35123 of 2004. This court, under Ext.P6 judgment, quashed Ext.P12 order finding that question whether the commissioner has demarcated the property correctly can be decided only after deciding whether the acquisition of land from the property covered by Document No:4302/1116 is the eastern portion or western portion. The plaint schedule property is described as the remaining extent of 48 cents covered by the said document excluding 29.680 cents acquired for widening Chackai - Thumba rocket launching road as per L.A.C.33 of 1964. In view of the direction, the WPC12759/08 2 learned Munsiff has to decide the question whether acquisition of land was the eastern or western portion, as the plaint schedule property could only be the balance extent of the property covered under document No.4302/1116. When the learned Munsiff started hearing the question, on the side of the respondents it was pointed out that there was no specific denial of the necessary allegations raised in the plaint and, therefore, it has to be taken that the facts pleaded are admitted. At that juncture, petitioner filed Ext.P3 petition under Order VI Rule 17 of Code of Civil Procedure for permission to amend the written statement. Respondents opposed the same by filing Ext.P4 counter affidavit. Learned Munsiff under Ext.P5 order dismissed the application holding that as there is no specific denial it tantamount to an implied admission and by amendment admission cannot be taken away and so petitioner cannot be allowed to amend the written statement. Ext.P5 order is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner and respondents were heard. 3. Pleading in paragraph 5 to 7 in the plaint was met in paragraph 16 of the written statement and paragraph 8 to 17 WPC12759/08 3 were met in paragraph 17 to 25 of the written statement. In paragraph 16 of the written statement what was pleaded by the petitioner was as follows:- “ Para 5 to 7 of the plaint are denied. The plaintiffs are put to strict proof of averments and statements therein”. By Ext.P3 petition petitioner sought to amend paragraph 16 deleting the second sentence, retaining the first sentence and adding that the averments in those paragraphs are falsehoods and the acquisition made mention of, was with regard to the western side of the property of the plaintiffs and no property of the plaintiffs lies on the western side of Chakai-Thumba rocket launching road as claimed, and any remaining property would lie only on the east of the said road, between the said road and the Railway tracks, and plaintiffs were never been in possession of any property at any point of time on the west of the road. The learned Munsiff disallowed the application for amendment considering the pleadings in paragraph 16 of the written statement as an admission of the plaint allegations. 4. Learned counsel appearing for the respondents relying on the decision of the apex Court in Usha Balashaheb Swami and Others v. Kiran Appaso Swami and Others WPC12759/08 4 (2007 (5) SCC 602) argued that by way of amendment, an admission whether specific or implied, cannot be taken away and at best the admission could only be clarified and attempt of the petitioner is to take away the admission which was rightly rejected by the trial court and therefore the order cannot be interfered. 5. The learned counsel appearing for petitioner relying on the decision of the apex Court in Rajesh Kumar Aggarwal v. Modi (2006 (3) KLT 192 (SC)) argued that the rule of amendment is essentially a rule of justice, equity and good conscience and while considering application for amendment court shall not consider the correctness or falsity of the case sought to be amended and the object of the Rule is that Courts should try the merit of the case that come before them and should allow amendments which are necessary for determining the real question in controversy between the parties provided it does not cause injustice to the other side. The learned counsel relying on the decision in Baldev Singh v. Manohar Singh (2006 KLT 953) argued that Courts should be extremely liberal in granting the prayer for amending the pleadings, especially the written statement. In paragraph 16 of the written statement, petitioner denied the allegations in paragraph 5 to 7 WPC12759/08 5 though it was added that the plaintiffs are put to strict proof of the averments and statements therein. That would be the legal consequence of any pleading which is denied by the defendants. Even if the defendants denies the plaint allegations, if the plaint allegations are proved without a pleading by the defendant, that plaintiff has to prove that averments, plaint allegations has to be accepted. Therefore, the trial court was not justified in giving undue importance to the pleadings in paragraph 16 of written statement to hold that there is an implied admission. 6. On the facts and circumstances of the case it is clear that the real dispute between the parties is whether the acquisition was of the western or eastern portion of the property covered under document 4302/1116. In such circumstances learned Munsiff should have allowed the application for amendment without considering the merit of the plea and should not have rejected the prayer. Ext.P6 order is therefore is quashed. Ext.P3 petition stands allowed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-