IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 OP(C).No. 2454 of 2011(O) ------------------------- OS.167/2007 of I ADDL.MUNSIFF COURT-I, NEYYATTINKARA .................... PETITIONER --------------- RUKIYA BEEVI, W/O.ABDUL KHAREEM, T.C.13/1502(1), BERMA ROAD,KUMARAPURAM, THIRUVANANTHAPURAM, FROM KALAM MANZIL, KARIMARAM, KOVILOOR, AMBOORI, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADVS. SRI.G.P.SHINOD SRI.RAM MOHAN.G. RESPONDENT(S): --------------------- KULUSAM BEEVI, D/O.KOULATH BEEVI, T.C.14/378 (2), MADEENA VEEDU, PUNTHI ROAD, KUMARAPURAM VILLAGE, THIRUVANANTHAPURAM - 695 011. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2454/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. NO.167/2007 ON THE FILES OF THE COURT OF THE ADDITIONAL MUNSIFF-I, NEYYATTINKARA. P2: COPY OF THE WRITTEN STATEMENT IN O.S. NO.167/2007 ON THE FILES OF THE COURT OF THE ADDITIONAL MUNSIFF-1, NEYYATTINKARA DATED 11/07/2007. P3: COPY OF THE WRITTEN STATEMENT TO THE COUNTER CLAIM FILED BY THE RESPONDENT. P4: COPY OF THEREPORT AND PLAN IN O.S. NO.167/2007. P5: COPY OF THE I.A. NO.4166/2010 IN O.S. NO.167/2007. P6: COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER IN I.A. NO.4166/2010 IN O.A. NO.167/2007. P7: COPY OF THE ORDER DATED 03/07/2010 IN I.A. NO.4166/2010 IN O.S. NO.167/2007 OF THE COURT OF THE ADDITIONAL MUNSIFF-I, NEYYATTINKARA. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2454 of 2011 -------------------------------------- Dated this the 28th day of July, 2011. JUDGMENT Defendant in O.S.No.167 2007 of the court of learned Additional Munsiff-I, Neyyattinkara is the petitioner before me challenging Ext.P7, order dated July 3, 2010 on I.A.No.4166 of 2010 allowing amendment of plaint to include a prayer for declaration of title and possession. Respondent filed the suit initially seeking a decree for prohibitory injunction against petitioner trespassing into the suit property – then described as 1.10 acres. Respondent claimed title and possession as per an assignment deed executed by petitioner in respect of 1.10 acres. Petitioner filed written statement denying allegations in the plaint and making a counter claim for prohibitory injunction regarding 40 cents. Petitioner claimed that of the 1.50 acres belonging to her, she assigned 1.10 acres to the respondent. Respondent filed a replication in answer to the counter claim contending that claim of petitioner that she has 40 cents with her is not correct and that if at all she has 40 cents excluding the 1.10 acres assigned to the respondent, the latter has no objection in petitioner locating the said 40 cents. After issues were framed, respondent filed Ext.P5, application for amendment of plaint to incorporate a prayer for declaration of title and possession of a total extent of 1.12 acres including 1.10 acres originally stated in the plaint schedule. That application was opposed on the ground that it would change the nature and character of the suit and would amount to withdrawal of certain admissions OP(C) No.2454/2011 2 made by the respondent in the replication. Learned Additional Munsiff by the impugned order (Ext.P7) dated July 3, 2010 allowed Ext.P5, application. That order is under challenge in this petition. 2. Learned counsel for petitioner contends that amendment has the effect of changing the nature and character of the suit, that it takes away certain admissions made by the respondent in the replication and at any rate, after commencement of trial it was not open to the learned Munsiff to allow the application for amendment except when the proviso to Rule 17 of Order 6 of the Code of Civil Procedure (for short, “the Code”) was found satisfied. Learned counsel placed reliance on the decisions in Ajendraprasadji N. Pandey and another v. Swami Keshavprakeshdasji N. and others [(2006) 12 SCC 1] and Vidyabai and others v. Padmalatha and another [2009 (1) KHC 560]. 3. So far as contention based on the proviso to Rule 17 of Order 6 of the Code is concerned, it is true that neither Ext.P5, application nor in the impugned order there is reference to satisfaction of conditions provided in the said proviso. But, question arises whether Ext.P5, application was preferred after commencement of the trial. It is not disputed that Ext.P5, application was preferred after issues were framed and before the case was posted for trial in the list. OP(C) No.2454/2011 3 4. Ajendraprasadji N. Pandey and another v. Swami Keshavprakeshdasji N. and others in the headnote it is stated that trial is deemed to commence when issues are settled and the case is set down for recording of evidence. In paragraph 18, it was argued that the observations in Kailash v. Nanhku [(2005) 4 SCC 480] that ordinarily trial commences on issues are framed and the suit is placed for hearing is a passing observation which cannot be accepted. Contra argument was raised in paragraph 57 that the date of settlement of the issue is the date of commencement of trial. Referring to the contentions the Supreme Court observed in paragraph 60 that as held in Kailash v. Nanhku, trial is deemed to commence when issues are settled and “the case is set down for recording of evidence”. In the latter decision (Vidyabai and others v. Padmalatha and another) it is observed that “filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to 'commencement of proceeding'”. In paragraph 12, it is explained that the date on which issues are framed is the date of first hearing, provisions of the Code envisage taking of various steps at different stages of the proceeding and filing of an affidavit in lieu of examination in chief of the witness would amount to 'commencement of proceeding'. 5. Going by the above decisions it is not merely framing of issues that would amount to commencement of trial as understood in the proviso to Rule 17 of Order 6 of the Code. Along with settlement of issues the case should also OP(C) No.2454/2011 4 have been set for recording of evidence by filing affidavit in lieu of examination in chief. As I observed, in the present case, application is preferred even before the case was included in the list for trial. In view of that the proviso to Rule 17 of Order 6 of the Code cannot apply. 6. Now on the merit of the contention raised, my attention is drawn to the averments in the plaint (in particular paragraph 3) that 1.10 acres is lying bounded by definite boundaries on all sides. My attention is drawn to the contention raised in the replication that if at all petitioner has 40 cents remaining with her after assignment of 1.10 acres in favour of the respondent, the latter has no objection regarding the said 40 cents (if any) being possessed and enjoyed by petitioner. Learned counsel submits that now as against the said contention, request is to incorporate in the plaint schedule yet another item – 1.02 acres as per a different document. 7. Regarding title of petitioner what is contended by the respondent is that as claimed in the written statement and counter claim, petitioner does not have 40 cents and that if at all she has 40 cents excluding the 1.10 acres already assigned to the respondent, the latter has no objection in locating the said 40 cents. That does not amount to any admission. Nor can an admission confer title on petitioner if she does not have 40 cents. 8. It is true that originally the suit was for prohibitory injunction against trespass and now it is altered to one for declaration of title and possession. I must bear in mind that one of the objective of amendment is to prevent multiplicity of suits. In the present case if amendment is not allowed OP(C) No.2454/2011 5 respondent may have to bring yet another suit in respect of the contentions which she sought to incorporate in the plaint. 9. In these circumstances I am inclined to think that the amendment was necessary. I do not find reason to interfere. 10. Learned counsel for petitioner submits that since Ext.P7, order was being challenged, petitioner has not filed written statement in answer to the amended plaint. I am inclined to grant petitioner two weeks time from the date of receipt of a copy of this judgment in the trial court to file written statement in answer to the amended plaint. Resultantly this Original Petition is dismissed. But petitioner is granted two weeks time from the date of receipt of a copy of this judgment in the trial court to file additional written statement in answer to the amended plaint. THOMAS P.JOSEPH, Judge. cks