IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 34250 of 2008(B) -------------------------- I.A.NO.1146/08 IN OS.85/2007 of MUNSIFF COURT, NADAPURAM. .................... PETITIONER(S): PETITIONER IN I.A.1146/2008 - MUNSIFF,NADAPURAM: PLAINTIFF IN O.S.85/2007 - MUNSIFF, NADAPURAM. ---------------------------------------------------------------------------------------------------- KANDOTH THAMASIKKUM CHATHIALAM VEETTIL THAZHAKUNIYIL GEETHA, D/O CHATHU, AGED 40 YEARS, KUTTIPRAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADVS. MR.B.KRISHNAN, MR.R.PARTHASARATHY. RESPONDENT(S): RESPONDENTS IN I.A.1146/2008 - MUNSIFF, NADAPURAM/DEFENDANTS IN O.S.85/2007- MUNSIFF, NADAPURAM. ----------------------------------------------------------------- 1. CHATHIALAM VEETTIL PARVATHI, D/O RAMUNNIKURUP, AGED ABOUT 55 YEARS, KUTTIPRAM AMSOM DESOM,VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 2. CHATHIALAM VEETTIL KUNHIKRISHNAN, S/O.RAMUNNIKURUP, AGED ABOUT 58 YEARS,KUTTIPRAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. MR.GEORGE THOMAS (MEVADA) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.34250/2008 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DISMISSING THE PETITION FOR LEAVE TO AMEND. P2: COPY OF THE PLAINT FOR RELIEF OF PROHIBITORY INJUNCTION. P3: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS. P4: COPY OF AFFIDAVIT IN SUPPORT OF THE PETITION FOR LEAVE TO THE AMEND. P5: COPY OF THE PETITION I.A.1146/2008. P6: COPY OF THE COUNTER STATEMENT IN 1146/2008 FILED BY THE RESPONDENTS. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.34250 OF 2008 (B) ----------------------------------- Dated this the 9th day of September, 2009 J U D G M E N T The writ petition is filed seeking mainly the following relief: i. to set aside Ext.P1 order and direct the learned Munsiff, Nadapuram to allow Ext.P5 petition; 2. Petitioner is the plaintiff in O.S.No.85 of 2007 on the file of the Munsiff Court, Nadapuram. Suit is one for perpetual prohibitory injunction, and the respondents are the defendants. After the suit came up for trial, the plaintiff moved an application for amendment of the plaint to seek additional reliefs of mandatory injunction and also a declaration that the respondents/defendants have no right of way through her property. That application was opposed to by the defendants by filing objections. The learned Munsiff, WPC.34250/08 2 after hearing both sides, dismissed the application. Propriety and correctness of that application is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. The learned counsel for the petitioner/plaintiff submitted that the amendment sought for is essential to resolve the controversies involved in the suit and to avoid multiplicity of suits. After the institution of the suit, a concrete slab was put over a channel to connect the property of the defendants with that of the petitioner/plaintiff, and by way of a decree of mandatory injunction, that slab is sought to be removed, and as the defendants have raised a contention that they have a right of way through the property of the plaintiff, a decree of declaration that no such way existed through the plaint property is also sought for, submits the counsel. Conceding that even in the Commission report collected immediately after the filing of the suit and also in the written statement, reference is made to the installing of a new concrete slab, as WPC.34250/08 3 indicated above, it is submitted, there was no wilful laches or deliberate default on the part of the petitioner/plaintiff in moving for an amendment before the commencement of the trial. On the other hand, the learned counsel for the respondents/defendants submitted that absolute lack of diligence on the part of the petitioner/plaintiff, is borne out by the facts and circumstances presented in the case in applying for the proposed amendment. Petitioner/Plaintiff was aware of the presence of the slab soon after the filing of the suit, and that was specifically stated in the written statement of the defendants also, submits the counsel. Inviting my attention to the proviso to Order VI Rule 17 of the Code of Civil Procedure, the learned counsel for the respondents/defendants submitted that in the absence of the party showing that the amendment could not have been sought for earlier, the court has no jurisdiction to entertain amendment application after the commencement of the trial. 4. I have perused Ext.P1 order passed by the court below taking note of the submissions made by the counsel on WPC.34250/08 4 both sides. The amendment was sought for belatedly, is the main reason which persuaded the learned Munsiff to disallow the request of the plaintiff for claiming additional reliefs in the suit. The crucial question that has to be looked into in examining the merit of the application for amendment is whether it is required for resolving the controversies arising for adjudication in the suit. Of course, the impact of the proviso to Order VI Rule 17 of the CPC has also to be taken note of in appreciating whether the proposed amendment is allowable or not. In analysing the impact of the provision, it is also to be looked into what is the prejudice, if any, caused to the opposite side if the amendment is allowed. I do not think that the proviso to Order VI Rule 17 of CPC has been brought in to deny any amendment that is proposed after the commencement of the trial. However, proviso imposes an interdiction that when such an amendment is sought for after the commencement of the trial, the party seeking it should show that in spite of due diligence, the amendment could not be applied for earlier. Of course, in the given facts of the case, the petitioner/plaintiff was fully aware of the existence of WPC.34250/08 5 the concrete slab, which is alleged to have been installed, according to her, immediately after the filing of the suit. The respondents/defendants in the written statement also had adverted to the presence of the concrete slab, which according to them, gave access to the pathway, running through the property of the petitioner/plaintiff. Whether those circumstances by themselves would constitute laches on the part of the plaintiff in moving an amendment earlier is the question that emerges for consideration. It has to be pointed out that the pleadings are the handworks of the professionals and not of the parties. Any defect in the pleadings very often comes to the notice of the party only when the case comes up for trial. Proviso to Order VI Rule 17 of CPC is not intended to bar all amendments proposed after the commencement of the trial, but, only such amendments which are likely to delay and protract the proceedings, and thus prevent the completion of the trial once it is commenced. The words “due diligence” should receive a liberal interpretation and it cannot be given a narrow and limited meaning that any lapse on the part of the party in seeking amendment should be subjected to strict WPC.34250/08 6 scrutiny to find out whether that party could have moved that application at an earlier point of time. The totality of the facts and circumstances involved, the reliefs claimed, the amendment proposed, everything have to be taken into account by the court in judging the conduct of the party to examine whether there was absence of due diligence in moving the proposed amendment earlier. So long as there is absence of culpable neglect or wilful default, and especially in a case where it is shown that the proposed amendment is essential to resolve the controversies involved, the court should incline to grant the amendment, so that multiplicity of proceedings could be avoided. The learned counsel for the petitioner submitted that petitioner is confining the proposed amendment only for seeking the decree of mandatory injunction alone for removal of the slab and not pressing the other one for the declaration that there is no pathway through the property. It is further submitted that no further evidence is also necessary by allowing the proposed amendment as the particulars furnished in the commission report are sufficient to consider the question emerging by that amendment. WPC.34250/08 7 Taking note of the submissions made and making it clear that the amendment will be limited to the manner indicated by the counsel, and no further opportunity will be provided to the plaintiff to take out a commission in the case, I direct the court below to allow the amendment of the plaint only in respect of the mandatory injunction sought for. The proposed amendment limited as indicated shall be granted subject to the payment of costs of Rs.750/- to the defendants within the time fixed by the court below. The defendants shall be given opportunity to file additional written statement. The amendment being carried out, both sides will be given opportunity to examine parties on that limited question alone. Writ petition is disposed in the manner indicated above. S.S.SATHEESACHANDRAN JUDGE prp