IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 OP(C).No. 931 of 2010(O) ------------------------ AS.53/2009 of SUB COURT, PALA OS.253/2003 of MUNSIFF COURT, PALA .................... PETITIONER: ---------------------- M.V.THOMAS,S/O.VARKEY,MALANAKARAVATTU HOUSE,KURICHITHANAM.P.O,MEENATHIL TALUK, KOTTAYAM DISTRICT - PIN - 686 634. BY ADV. SRI.SUNIL CYRIAC RESPONDENT(S): --------------------------- PIOUS JOSEPH,S/O.OUSEPH,PAKALOMATTOM THOZHUTHUNKAL HOUSE,KURICHITHANAM.P.O, MEENATHIL TALUK,KOTTAYAM DISTRICT - 686 634. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(C) NO.931/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT DTD. 5/12/2005 IN O.S.NO.253/2003. P2: COPY OF THE JUDGMENT DTD. 22/06/2007 IN WP(C) NO.31101/2005. P3: COPY OF THE JUDGMENT DTD. 31/03/2009 IN O.S.NO.253/2003 OF THE MUNSIFF'S COURT, PALA. P4: COPY OF THE AFFIDAVIT IN I.A.NO.2052/2009 DTD. 14/12/2009. P5: COPY OF THE OBJECTION DTD. 14/01/2010 FILED BY THE DEFENDANT. P6: COPY OF THE ORDER DTD. 13/08/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) NO.931 of 2010 ==================================== Dated this the 21st day of December, 2010 J U D G M E N T Indisputably it is, Rule 17 of Order VI of the Code of Civil Procedure (short, “the Code”) empowers the court to allow either party to the proceedings before it to alter or amend his pleadings “at any stage of the proceedings” on such terms as may be just, and as is necessary for determining the real question in controversy between the parties. It is also not disputed that power to allow alteration or amendment of pleadings could be exercised by the appellate court as well. But when a request to allow alteration or amendment of pleadings is made in the appellate court, at what stage of the proceedings is the request to be considered? Is it appropriate to decide the application (for amendment of pleadings) keeping the appeal itself pending? 2. Petitioner-plaintiff sued respondent for a decree for prohibitory injunction claiming right over item No.2, described as a pathway in the plaint schedule for access to item No.1. In paragraph 2 of the plaint petitioner stated that the said way was in existence even before he purchased item No.1 property. Petitioner O.P(C) No.931 of 2010 -: 2 :- also pleaded public right over the said way. Trial court decreed the suit. Respondent-defendant preferred appeal as A.S. No.53 of 2009 in the court of learned Sub Jude, Pala. When that appeal was pending, petitioner filed I.A. No.2052 of 2009 seeking permission to amend the plaint to incorporate a plea of dedication over item No.2. That application was dismissed by the learned Sub Judge vide Ext.P6, order even while the appeal was pending. Exhibit P6, order is under challenge. It is contended by learned counsel for petitioner that on the facts of the case learned Sub Judge ought to have allowed I.A. No.2052 of 2009. 3. Though respondent was served in this proceeding, he has not responded. 4. As first stated above Rule 17 of Order VI of the Code empowers the court to allow either party to alter or amend his pleadings “at any stage of the proceedings”. But when alteration or amendment of pleadings is sought for in the appeal except when it relates to some formal amendment to the cause title and such other matters and the alteration or amendment affects substantive right of parties it is appropriate that the request for alteration or amendment is considered while the appeal itself is heard. A learned Judge of this Court in Parvathy O.P(C) No.931 of 2010 -: 3 :- Chellammal v. Chellamma Santhamma (1989 [2] KLT SN 9 (Case No.8) has held that ordinarily it is not good practice to hear an application to amend pleadings before hearing the appeal. That is because ordinarily allowing an amendment may necessitate remand of the case itself to the trial court. Appellate court should have heard the application (for amendment) along with the appeal so that, if the amendment application is rejected the appeal could be disposed of finally and if the application is allowed the court could consider the necessity for a remand. Again in Ahamedkutty v. Sub Judge (1990 [1] KLT 716) another learned Judge of this court while observing that there is no impediment or bar to an appellate court permitting amendment of pleadings observing the well known principles subject to which alone such amendment is generally granted, held that such request for amendment, ordinarily be only as a consequence of, or subsequent in point of time to, examination of records of the trial court and the merit of the controversy. Appellate court must be convinced about bona fides of the amendment, about its necessity and grant of leave should be necessary in the interest of justice. In the circumstances it is only proper that appellate court considers the matter, ordinarily, while O.P(C) No.931 of 2010 -: 4 :- dealing with the appeal on merits. Learned Judge pointed out that cases other than mere formal amendments substantively affecting rights of the parties (in the appeal) should therefore ordinarily be dealt with only along with the appeal. 5. It is so held since amendment of pleadings in appeal if permitted may require remand of the case. If amendment of the plaint is sought for and allowed in appeal, normally defendant is entitled to file additional written statement. That may necessitate framing of additional issues and parties may require evidence to be adduced in respect of the additional issues. These are not matters which the appellate court should ordinarily undertake. It is therefore held that when request for amendment which substantively affected right of parties is made in appeal, such request should be considered while hearing the appeal. 6. In the present case learned Sub Judge has disposed of I.A. No.2052 of 2009 which if allowed would substantively affect rights of parties, even while appeal was heard. It required examination of the trial court records to decide the application for amendment. Viewed in the above line, I am inclined to think that the learned Sub Judge has not followed the decisions of this Court in the matter of disposal of application for amendment. Exhibit P6, O.P(C) No.931 of 2010 -: 5 :- order therefore is liable to be set aside and I.A. No.2052 of 2009 is remitted to the learned Sub Judge to be heard and disposed of along with the appeal as directed in the decisions cited supra. Resultantly, this Original Petition is allowed. Exhibit P6, order dismissing I.A. No.2052 of 2009 is set aside. That application is remitted to the learned Sub Judge for disposal along with the appeal (A.S. No.53 of 2009). THOMAS P. JOSEPH, JUDGE. vsv