IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 5419 of 2009(O) ------------------------- I.A.NOS.814/06 AND I.1.817/06 IN AS.76/2004 of SUB COURT,NEYYATTINKARA .................... PETITIONER(S): ------------------------ 1. RAJA KUMAR, S/O.GREGORY, LITTLE PLACE, EANTHIKALA, ARAYOOR PO., ARAYOOR DESOM, CHENKAL VILLAGE, AMARAVILA VIA., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. 2. SATHYAKUMAR, S/O.GREGORY, GEM VILLA, EANTHIKALA, ARAYOOR PO.,ARAYOOR DESOM, CHENKAL VILLAGE, AMARAVILA VIA., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. 3. RANI POULIN, D/O.GREGORY, GEM VILLA, EANTHIKALA, ARAYOOR PO.,ARAYOOR DESOM, CHENKAL VILLAGE, AMARAVILA VIA., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. 4. MARY.A., W/O.GREGORY , GEM VILLA, EANTHIKALA, ARAYOOR PO., ARAYOOR DESOM, CHENKAL VILLAGE, AMARAVILA VIA., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. BY ADVS.MR.G.P.SHINOD MR.RAM MOHAN.G., MR.MANU V. RESPONDENT(S): --------------------------- RANI AYARIN.G., D/O.GREGORY, CHUNDAVILA, ERICHALLOOR, PLAMOOTTUKKADA PO., KARODE VILLAGE, PARASSALA, THIRUVANANTHAPURAM. BY ADV. MR.R.GOPAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.5419 of 2009 - O --------------------------------- Dated this the 26th day of June, 2009 J U D G M E N T Petitioners are the appellants in A.S.No.76/2004 on the file of the Sub Court, Neyyattinkara. The above appeal arose from the decree and judgment in O.S.No.391/2002 on the file of the Munsiff Court, Neyyattinkara. The appellants/petitioners are the wife and children of one Grigory, and the respondent, plaintiff in the above suit, is one of the daughters of Grigory. The respondent filed the above suit for partition of the properties left behind by her father. A preliminary decree was passed in the suit declaring her share over the suit property and the correctness of it is challenged in the above appeal by the petitioners, who in their written statement had resisted the suit claim contending that late Grigory had executed a will and, under the bequest made, the respondent/plaintiff is not a beneficiary. The contentions raised by the petitioners were repelled and the right of the respondent/plaintiff to have a share in the suit property was recognized under the judgment passed in the suit. In the W.P.(C).No.5419 of 2009 - O 2 appeal these petitioners have moved two applications, one for leave to amend their written statement to incorporate further particulars with respect to ouster which according to them, was raised in the written statement, and another for reception of additional evidence under Order XLI Rule 27 CPC. Petitioners had approached this Court earlier and moved a writ petition for having an expeditious disposal of the above two applications by the appellate court. Pursuant to orders passed by this Court directing the appellate court to dispose those applications, even before hearing the appeals, the applications were disposed by the appellate court. In the present writ petition, petitioners challenge the propriety and correctness of the order passed by the appellate court declining the request made in their application for leave to amend their written statement. Ext.P3 is the copy of that order, which is challenged invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. Notice being given, respondent has entered appearance. I heard the counsel on both sides. W.P.(C).No.5419 of 2009 - O 3 3. Learned Sub Judge has dismissed the applications for leave to amend the written statement mainly on the ground that the defendants who have set up a claim on the basis of a will alleged to have been executed by late Grigory, cannot advance an inconsistent and contradictory plea of ouster, according to the counsel. Inviting my attention to the decision reported in Baldev Singh v. Manohar Singh (2006 (3) KLT 953 SC) learned counsel for the petitioners submitted that inconsistent pleas can be taken by the defendant in his written statement and when a leave to amend pleadings is sought for, the court should be liberal, unless serious injustice or irreparable injury is likely to be caused to the other side by allowing such amendment. Countering the arguments so advanced by the counsel for the petitioners, learned counsel for the respondent submitted that there is no merit in the application filed seeking leave to amend written statement and that too at a stage after passing of a preliminary decree, after adjudication of all disputes raised in the suit. The attempt of the petitioners in moving both applications, according to the learned counsel for the petitioner, is only to W.P.(C).No.5419 of 2009 - O 4 prolong the litigation as rightly and correctly found by the learned Sub Judge in Ext.P3 order. Having regard to the submissions made by the counsel on both sides and taking note of the facts and circumstances presented, with reference to Ext.P3 order impugned in the petition, I find there is no illegality, irregularity or impropriety in Ext.P3 order passed by the learned Sub Judge which calls for interference exercising the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. Petitioners/defendants in the suit all along resisted the suit claim of the plaintiff, admittedly, a daughter of late Grigory, contending that he had executed a testament and under the testament she is disinherited from claiming a share in the suit property. If they had a case of ouster denying the title of the plaintiff over the suit property, it should have been agitated during trial. After preliminary decree was passed in favour of the respondent/plaintiff, petitioners/defendants in the suit cannot be allowed to advance a new case of which no opportunity to defend was given to the plaintiff. Permitting the petitioners to advance such a new case, definitely would cause serious W.P.(C).No.5419 of 2009 - O 5 prejudice and injury to the plaintiff who had already obtained a decree after adjudication of all disputes raised in the suit in a fair trial. So much so, I find the challenge against Ext.P3 order raised by the petitioners/defendants in the suit must fail. The writ petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-