IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 WP(C).NO. 22882 OF 2010(O) ----------------------------------------- OS.814/2007 OF PRINCIPAL SUB COURT,ERNAKULAM PETITIONER(S): --------------------- 1. SARASWATHY @ SARASU ARAVINDAN, W/O.ARAVINDAN, AGED 50, NATTUVAZHIVELIYIL, NADAKKAVU P.O., UDAYAMPEROOR. 2. SHEEBA, W/O.BINU, AGED 30, BINEESH BHAVAN, VADAKARA P.O., VARIKKAMKUNNU DESOM, VELLOOR VILLAGE, VAIKOM TALUK. 3. BINU, S/O.MOHANAN, AGED 33, BINEESH BHAVAN, VADAKARA P.O., VARIKKAMKUNNU DESOM, VELLOOR VILLAGE, VAIKOM TALUK. BY ADV. SRI.K.C.CHARLES SRI.M.POLY MATHAI RESPONDENT(S): ------------------------- 1. RAMU PRABHAKARAN, AGED 53, S/O.RAMAN, HOUSE NO.630, GCDA COLONY, IQ NAGAR, ELAMKULAM, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. SATHYADEVI, W/O.ARAVINDAN, AGED 60, KOCHUMALAYIL, UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 3. CHANDRAMATHY MADHAVAN, W/O.MADHAVAN, AGED 63, KADATHATTEL, PERUMPILLY, MULANTHURUTHY. 4. LALITHA, W/O.STALIN, AGED 56, KOOTTUNGAL HOUSE, PUTHIYAKAVU, TRIPUNITHURA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.22882 of 2010 ==================================== Dated this the 22nd day of July, 2010 J U D G M E N T Writ Petition is preferred by defendant Nos.2, 4 and 5 in O.S. No.814 of 2007 of the court of learned Principal Sub Judge, Ernakulam challenging a single line order (Ext.P5) by which learned Principal Sub Judge has allowed an application for amendment of plaint a second time notwithstanding that the application was opposed by petitioners. The suit is for partition of ten cents which originally belonged to Dayalu, mother of petitioners and respondents. Respondent Nos.1 to 4 claimed partition of the said property. Petitioners contended that Dayalu had gifted three cents and a building in favour of petitioner Nos.2 and 3 as per gift deed of the year 2005 and another one cent in favour of petitioner No.1 as per an another gift deed of the same year and those gift deeds having been accepted by petitioners, property referred to therein is not available for partition. While so respondents filed Ext.P2, application for amendment to incorporate a contention that Dayalu had no right or authority to execute the gift deeds since she acquired property on behalf of her husband and children. That application was allowed. Not satisfied with W.P(C) No.22882 of 2010 -: 2 :- that respondents came up with Ext.P3, application for amendment of plaint. There, plea sought to be incorporated by amendment is that the gift deeds were got executed by the beneficiaries thereunder by undue influence and other vitiating circumstances and hence the gift deeds are not valid. Application was opposed by petitioners. Learned Sub Judge has passed the following order, “Heard both sides. I.A allowed. Carry out amendment within 14 days. I.A closed.” 2. Learned counsel for petitioners contends that the impugned order is not a speaking order and at any rate on the facts also court below was not justified in allowing amendment. 3. I agree with learned counsel that learned Sub Judge ought to have passed a reasoned order. Necessity to pass speaking orders has been highlighted by superior courts on various occasions, the last being CCT v. Shukla & Brothers ([2010] 4 SCC 785) where it is stated that reasons are the soul of orders and non-recording of reasons could lead to dual infirmities, firstly which may cause prejudice to the affected party and secondly, more particularly hamper proper administration of justice. The impugned order does not conform to the requirements of the decision supra. But now the question for W.P(C) No.22882 of 2010 -: 3 :- decision is whether for the said reason alone I should interfere with the order and remit the case to the court below for fresh consideration considering the facts and circumstances of the case. 4. According to the petitioners in spite of petitioners referring to the impugned gift deeds in the reply notice respondents did not make any mention about that in the plaint. Even later by Ext.P2, application what was incorporated by amendment is that Dayalu had no right or authority to execute the gift deeds which meant that respondents admitted execution of gift deeds. Admission of execution must be admission as a valid document. Admission must be of due execution and attestation (See S.R.Srinivasa & Others v. S.Padmavathamma – [2010] 5 SCC 274). In Ext.P3, application amendment sought is to the effect that gift deeds are invalid for vitiating circumstances stated therein. It is not as if respondents are not entitled to take up alternative plea regarding execution of gift deeds and its validity. Concededly trial of the case has not commenced and as learned counsel would put it, application was preferred on the date of trial. All amendments which are necessary to decide the controversy are to be allowed unless it resulted in prejudice to opposite party which cannot be compensated in terms of money. Having regard to all these W.P(C) No.22882 of 2010 -: 4 :- aspects I am not persuaded to think that respondents had no right to seek amendment as per Ext.P3 and the application ought to have been disallowed. After all petitioners will get an opportunity to file additional writ statement. In these circumstances notwithstanding that the order passed by learned Sub Judge is not a speaking order I do not consider it necessary to set aside the impugned order and remit it to the court below which will only be an empty formality. Writ petition fails and it is dismissed. Petitioners shall be given opportunity to file additional written statement in answer to the amended plaint. THOMAS P. JOSEPH, JUDGE. vsv