IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 OP(C).No. 3322 of 2011(O) ------------------------- PETITIONERS -------------------- 1. KRISHNA JANAKI, W/O.KAPPANA, MURALEEDHARAN. 2. JAMUNA SATYAPRADEEP, D/O. KAPPANA MURALEEDHARAN 3. JAGADA RAJENDRAN, D/O KAPPANA MURALEEDHARAN , PERMANENTLY RESIDING AT 7S1, CHINTHAVALAPPU FLATS, PUTHIYARA.P.O., KOZHIKODE-4 (REPRESENTED BY P/A G.UMA SANKAR, S/O.P.GOPALAKRISHNA PANICKER,PRESENTLY RESIDING AT 7S1,CHINTHAVALAPPU FLATS,PUTHIYARA.P.O.,KOZHIKODE-4, 4. JALAJA.M., D/O.KAPPANA MURALEEDHARAN, PERMANENTLY RESIDING AT 7S1, CHINTHAVALAPPU FLATS, PUTHIYARA.P.O., KOZHIKODE-4. BY ADV. SRI.T.K.VIPINDAS RESPONDENT(S): ------------------------- 1. KAPPANA KOCHU RUGMINI @ RUGMINI DEVI MENON (DEAD), D/O.LATE SANJEEVA MENON C/O.PREMKUMAR MENON, "KEDARAM", NEAR PRIME BODY, NADAKAVU, BILATHIKULAM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. P.O., NADAKAVU, PIN-673 011. 2. KATTUNGAL MURALEEDHARAN, S/O.APPOOTY, AGE NOT KNOWN TO THE PLAINTIFFS, "MITHILA",VALAYANADU AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. P.O.NADAKAVU, PIN-673 011. 3. K.VISHALAKSHI, D/O.A.UNNI NAIR, RESIDING AT KEEZHEDATH, KOTTULI AMSOM, PARAYANCHERY DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT., PO.KOTTULI-673 106. VK OP(C).No. 3322 of 2011(O) --------------------------------------- 4. K.J.MARY, D/O.JOSEPH, RESIDING AT THALANANI, KOTTULI AMSOM, PARAYANCHERY DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, P.O.KOTTULI-673 106. 5. NAYANAR CHILDRENS HOME SOCIETY (NAYANAR BALIKA SADANAM), ERNAHIPALAM, KACHERI AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT REPRESENTED BY HONORARY SECRETARY, P.O.KACHERI, PIN-673 302. 6. C.K.HAREENDRANATHAN, AGED 50 YEARS, S/O.K.M.KUNHIKANNAN NAMBIAR, KEEZHEDATH HOUSE, P.O.PUTHIYARA, KOTTULI AMSOM, PARAYANCHERY DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, P.O. KOTTULI, PIN-673 106. 7. MATHAI @ MATHEW, AGED 72 YEARS, S/O.T.AVARI, P.O.PUTHIYARA, KOTTULI AMSOM,PARAYANCHERY DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. P.O.PUTHIYARA, PIN-673 004. 8. KAPPANA VINAYA KUMAR, AGED 59 YEARS, S/O. LATE KAPPANA KOCHU RUGMINI @ RUGMINI DEVI MENON, C/O.PREMKUMAR MENON, "KEDARAM", NEAR PRIME BODY NADAKKAVU, BILATHIKULAM, KOZHIKODE, P.O.NADAKAVU, PIN-673 011. 9. KAPPANA JAYANTH KUMAR, AGED 58 YEARS, S/O. LATE KAPPANA KOCHU RUGMINI @ RUGMINI DEVI MENON, C/O.PREMKUMAR MENON, "KEDARAM", NEAR PRIME BODY NADAKKAVU, BILATHIKULAM, KOZHIKODE, P.O.NADAKAVU, PIN-673 011. 10. KAPPANA JAYANTH KUMAR, AGED 57 YEARS, S/O. LATE KAPPANA KOCHU RUGMINI @ RUGMINI DEVI MENON, C/O.PREMKUMAR MENON, "KEDARAM", NEAR PRIME BODY NADAKKAVU, BILATHIKULAM, KOZHIKODE, P.O.NADAKAVU, PIN-673 011. 11. KAPPANA SHAILAJA PREM, 51 YEARS, D/O.LATE KAPPANA KOCHU RUGMINI @ RUGMINI DEVI MENON, C/O.PREMKUMAR MENON, "KEDARAM", NEAR PRIME BODY NADAKKAVU, BILATHIKULAM, KOZHIKODE, P.O.NADAKAVU, PIN-673 011. OP(C).No. 3322 of 2011(O) ------------------------------------ 12. KAPPANA THANOOJA JAGADEESH,D/O. LATE KAPPANA KOCHU RUGMINI @ RUGMINI DEVI MENON, C/O.PREMKUMAR MENON, "KEDARAM", NEAR PRIME BODY NADAKKAVU, BILATHIKULAM, KOZHIKODE, P.O.NADAKAVU, PIN-673 011. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.10.2010, THE COURT ON 14/10/2011 DELIVERED THE FOLLOWING: OP(C).No. 3322 of 2011(O) ----------------------------------------- APPENDIX -------------- PETITIONER(S) EXHIBITS ------------------------------------ EXT.P1TRUE COPLY OPF THE PLAINT IN OS 391/2005 OF SUB COURT, KOZHIKODE. EXT.P2TRUE COPY OF THE AMENDMENT APPLICATION (IA NO.1103/2011). EXT.P3TRUE COPY OF COUNTER STATEMENT TO IA 1103/2011. EXT.P4TRUE COPY OF ORDER IN I.A.1103/2011 DATED 24/08/2011. RESPONDENT'S EXHIBITS : NIL ------------------------------------ / TRUE OCPY / P.A. TO JUDGE VK THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3322 of 2011 --------------------------------------- Dated this 14th day of October, 2011 JUDGMENT Plaintiff in O.S.No.391 of 2005 of the Court of learned Third Additional Sub Judge, Kozhikode is challenging Ext.P4, order refusing amendment as prayed for in Ext.P2, application (I.A.No.1103 of 2011). 2. The litigation has a chequered career. To put it in short, according to the petitioners (who claimed to be the legal heirs of Kappana Muraleedharan) plaint A schedule belonged to Chirakkal Kovilakam. There was a lease of that property to Palat Krishnan Panikkar and by subsequent assignments it came to Kokkadath Rugmini Amma as per sale deed No.925 of 1946. One of the sons of the said Rukmini Amma (Sanjeeva Menon) pre- deceased her. Kappana Muraleedharan is the son of Sanjeeva Menon. Even as per the pleadings in the plaint, Kappana Muraleedharan and the first respondent have filed O.S.No.123 of 1974 for a declaration that the property belonged to them. That suit was dismissed, the appeal and second appeal also met with the same result. It is the further case of petitioners that later, Kappana Muraleedharan and the first respondent made a re-entry O.P(C).No.3322 of 2011 -: 2 :- and took possession of the property (allegedly) after the 5th respondent became defunct. Petitioners wanted partition of the suit property among themselves as legal heirs of Kappana Muraleedharan and the first respondent/first defendant. In the course of the suit, petitioners wanted the plaint to be amended to contend that since the 5th respondent was defunct even during the time O.S.No.123 of 1974 and its appeal and second appeal were pending and that judgments and decrees in that suit and appeals are obtained by fraud and collusion. The further amendment sought is that 5th respondent has transferred the property to respondents 3 and 4 in violation of its Rules and Regulations and hence those transfers and subsequent transfers in favour of respondents 6 and 7 are void. The application was resisted by contesting respondents by Ext.P3, objection. Learned Munsiff found that the amendment cannot be allowed since it would alter the nature and character of the suit. Ext.P4, order dated 24.08.2011 is under challenge. 3. Learned counsel has asserted the contentions that petitioners have raised in the court below in support of Ext.P2, application. It is contended by the learned counsel before me also that since the 5th respondent was not in existence, O.S.No.123 of O.P(C).No.3322 of 2011 -: 3 :- 1974 and the appeals arising therefrom and the decrees are vitiated by fraud and collusion. It is also contended that transfers made by the 5th respondent are not valid being against its own Rules and Regulations. 4. I have heard learned counsel and gone through the plaint and the amendment sought for. I am not inclined to think that interference with the order passed by the learned Sub Judge is required. My reasons are that so far as amendment to challenge judgment and decree in O.S.No.123 of 1974 and the appeal and second appeal arising therefrom are concerned, it is not disputed that the suit and the appeals were preferred by the predecessor-in-interest of petitioners and the first respondent. Even in the plaint in this case there is reference to non existence of the 5th respondent but, appropriate pleading was not incorporated in the plaint. The issues raised and found in O.S.No.123 of 1974 are all concluded and at this stage, I am not inclined to think that petitioners are permitted to rake up those issues again on the ground of those decrees being obtained by fraud and collusion particularly when the said suit and appeals were preferred by none other than the predecessor-in-interest of the petitioners and the first respondent. I must also bear in mind O.P(C).No.3322 of 2011 -: 4 :- that in the plaint right claimed by petitioners is on the strength of alleged re-entry and re-possession of the property by Kappana Maraleedharan and the first respondent/first defendant. 5. So far as the second limb of amendment sought as to the validity of transfers allegedly made by the 5th respondent is concerned, if petitioners are able to prove that title of the property vested with them and the first respondent, it is immaterial whether 5th respondent has made the transfers validly or not. If on the other hand petitioners and first respondent have no title over the property, then also the Court is not concerned with the validity of transfers which the 5th respondent is said to made in favour of respondents 3 and 4. 6. Learned Sub Judge observed that amendment if allowed would alter the nature and character of the suit. The suit is for partition and that is now sought to be changed as one including to set aside the judgment and decrees in the earlier litigation. 7. Learned counsel requested that petitioners may be permitted to file a replication in answer to the written statement filed by the contesting respondents. Subsequent pleadings is a matter which comes under Order VIII Rule 9 of the Code of Civil O.P(C).No.3322 of 2011 -: 5 :- Procedure and when such subsequent pleadings are not in answer to set off, counter claim or amendment of plaint, leave of Court is required. It is open to the petitioners to seek leave of the learned Sub Judge, if at all they need to file any replication in answer to the written statement filed by any of the contesting respondents. With the above observations this original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-