IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 7160 of 2010(O) ------------------------- AGAINST THE ORDER DATED 13/01/2010 IN IA 177/09 IN OS.72/2006 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER: --------------- E.P.PAUL, S/O.LATE SRI.E.P.KOCHAPPU, ELAMKUNNAPPUZHA HOUSE, (OPPOSITE SEEMATTI STAFF QUARTERS), COUNCILLOR ROAD, KALOOR,P.O, KOCHI-17. BY ADV. SRI.VARGHESE PREM SRI.TONE JOSEPH RESPONDENTS: --------------- 1. MRS.JESSY VARGHESE, D/O.LATE SRI.E.P.KOCHAPPU, ELAMKUNNAPUZHA HOUSE, (OPPOSITE SEEMATTI STAFF QUARTERS), COUNCILLOR ROAD, KALOOR.P.O, KOCHI-17. 2. MRS.MARY JOSEPH, W/O.P.N.JOSEPH, HOUSE NO.1850/1, THRESSA NILAYAM, MARIAPPU ROAD, KULLAPPU CIRCLE, ST.THOMAS TOWN, BANGALORE-84. 3. MRS.VALSA JOY, W/O.JOY, PANKETH HOUSE, KOTTAPURAM P.O, KODUNGALLOOR, THRICHUR DISTRICT. 4. MRS.JANE VARGHESE, W/O.VARGHESE, KEERTHI LAYOUT, ST.ANTONY GARAGE ROAD, ST.THOMAS TOWN POST, BANGALORE-84. 5. MRS.ELIZABATH ANTONY, W/O.ANTONY, MALIKECKAL HOUSE, I.F.G.T.B., FOREST CAMPUS, COIMBATORE-2. 6. MRS.GIGI XAVIER, W/O.XAVIER, PANKETH HOUSE, KOTTAPURAM.P.O, KODUNGALLOOR, TRICHUR DISTRICT. 7. MRS.LILLY PAUL, W/O.E.P.PAUL, ELAMKUNNAPUZHA HOUSE, (OPPOSITE SEEMATTI STAFF QUARTERS), COUNCILLOR ROAD, KALOOR.P.O, KOCHI-17. ADV. SRI.M.C.CHERIAN FOR R1 SRI.P.M.SANEER FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : AFFIDAVIT AND PETITION DTD. 03.01.2009 IN I.A.No.177 OF 2009 IN I.A.8327 OF 2008 IN O.S.No.72 OF 2006 EXHIBIT P2 : OBJECTION DTD. 20.03.2009 IN I.A.No.177 OF 2009 IN I.A.8327 OF 2008 IN O.S.No.72 OF 2006 EXHIBIT P3 : ORDER DTD. 13.01.2010 IN I.A.No.177 OF 2009 IN I.A.8327 OF 2008 IN O.S.No.72 OF 2006 RESPONDENTS' EXHIBITS: EXHIBIT R1(a) : ORDER DTD. 24.11.2007 IN I.A.No.5682 OF 2007 IN O.S.No.72 OF 2006 OF SUB COURT, ERNAKULAM EXHIBIT R1(b) : ORDER DTD. 13.01.2010 IN I.A.No.8327 OF 2008 IN O.S.No.72 OF 2006 OF SUB COURT, ERNAKULAM True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.7160 of 2010 --------------------------------------- Dated this 21st day of July, 2010 JUDGMENT This writ petition is in challenge of Ext.P3, order whereby learned Sub Judge has allowed an application to amend the plaint schedule description. Respondent No.1 filed the suit for partition against petitioner and others and immediately before learned Sub Judge passed preliminary decree, respondent No.1 filed I.A.No.5682 of 2007 to correct description of plaint schedule. That application was dismissed by learned Sub Judge vide Ext.R1 (a), order stating that application is belated but, without foreclosing right of respondent No.1. Learned Sub Judge observed that question of boundary can be decided in the final decree stage. In the meantime petitioner preferred appeal against preliminary judgment and decree and that appeal is pending as A.S.No.382 of 2008. Respondent No.1 filed I.A.No.177 of 2009 to effect the very same correction in the plaint A schedule. That application was allowed by learned Sub Judge vide Ext.P3, order in the following lines. “Heard. I.A allowed carry out correction as prayed for. I.A closed. 2. Learned counsel for petitioner/defendant No.1 W.P.C.No.7160 of 2010 : 2 : contends that application itself is not maintainable for reasons more than one as stated in the objection preferred in the court below but which was not even considered by the learned Sub Judge. Learned counsel states that in so far as an appeal has already been preferred as A.S.No.382 of 2008, forum for amendment of plaint was not trial court but the appellate court. Reliance is placed on the decision of the Full Bench of this court in Kannan Vs. Narayani (1980 KLT 9). Learned counsel for respondent No.1 contends that in view of Ext.R1(a), order respondent No.1 had the right to move such an application in the final decree application. According to the learned counsel there is no reason to interfere with the impugned order and it was well within the power of trial court to allow the application since what is challenged in appeal is only the preliminary judgment and decree. Reliance is placed on the decision of this court in Krishnan Vs. Mohammed (2006(1) KLT 156). 3. I must say that learned Sub Judge has not referred to any of the contentions raised by petitioner while disposing of the application. Law requires that an order must be a reasoned one so that parties to the litigation and superior court shall know on what ground the application is allowed or not. The Supreme Court in Assistant Commissioner, Commercial Tax W.P.C.No.7160 of 2010 : 3 : Department, Works Contract and Leasing, Kota Vs. Shukla and Brothers (2010 (4) SCC 785) has stated that, “Reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases. Such is the significance of reasoning in any rule of law. Giving reasons furthers the cause of justice as well as avoids uncertainty and helps in the observance of law of precedent”. (See para 24). The Supreme Court in the same decision observed thus: “Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice”. Certainly the order under challenge suffers from an infirmity. 4. Then the next question is whether for the said reason alone the matter has to go back to learned Sub Judge for decision. It is pointed out by learned counsel for respondent No.1 that amendment has already been carried out pursuant to Ext.P3, order. In such a situation, if on the facts and on point of law Ext.P3, order can otherwise be sustained. I do not find it necessary or proper to send the application back to learned Sub Judge for fresh consideration since that will only add to the confusion. 5. What is requested in the application is to amend the W.P.C.No.7160 of 2010 : 4 : description of plaint schedule. I must bear in mind that as seen from Ext.R1(a), order respondent No.1 was permitted to seek amendment in the final decree stage. It is accordingly that the present application was filed by respondent No.1 in the final decree stage. Learned counsel for petitioner has a contention that amendment as carried out would encompass larger extent of land not contemplated in the plaint schedule and petitioner lost the opportunity to cross examine respondent No.1 in that regard. Learned counsel for respondent No.1 states that there is no such contention raised in the litigation to I.A.No.177 of 2009. But petitioner opposed a similar application when it was filed before passing the preliminary judgment and decree. But the actual extent extent of property available for partition is a matter which is to be decided in the final decree after the Advocate Commissioner inspected the property and submitted the report. Amendment carried out does not in any way affect right of petitioner. 6. Now what remained is whether trial court was legally competent to entertain the application. The decision of Full Bench of this court in Kannan Vs. Narayani (supra) relied by the learned counsel related to power of court to correct or amend the decree under Section 152 of the Code of Civil Procedure (for W.P.C.No.7160 of 2010 : 5 : short, “the Code”). Full Bench held, relying on the principle of merger that once judgment and decree of the subordinate court get merged in the judgment and decree of superior court and except in case where the appeal is disposed of under Order 41 Rule 11 of the Code, forum for correction of judgment and decree is the superior court. That contingency does not arise in this case for more than one reason, firstly, what is sought for is not amendment of judgment and decree but only amendment of plaint schedule under Order 6 Rule 17 of the Code and, secondly, as held by this court in Krishnan Vs. Mohammed (supra) when challenge in the appeal is against preliminary judgment and decree, the suit continues to be pending in the trial court. Court below therefore was competent to entertain the application. In the circumstances though the order under challenge lacks reason, I am not inclined to interfere. Resultantly this writ petition fails and it is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-