IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 WP(C).NO. 23643 OF 2010(O) ------------------------------------------- AGAINST THE ORDER IN IA.1170/2010 IN OS.164/2009 OF MUNSIFF COURT, OTTAPPALAM .................... PETITIONER(S): ----------------------- STANLY PAUL, AGED 40 YEARS, S/O.LATE K.PAUL, PRAKASH HOUSE, VANIYAMKULAM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT(S): ------------------------ 1. RT.REV.DR.K.P.KURUVILA, AGED ABOUT 58 YEARS, BISHOP, C.S.I. NORTH KERALA DIOCESE, P.O.SHORNUR-679121, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. REV.B.N.FENN, AGE ABOUT 52 YEARS, TREASURER AND ATTORNEY, C.S.I.NORTH KERALA DIOCESE, DIOCESE OFFICE, P.O.SHORNUR-679121, OTTAPALAM TALUK, PALAKKAD DISTRICT. 3. CHRISTOPHER, ABGED ABOUT 71 YEARS, S/O.PULIMUGHAM KUMARAN, MISSION COMPOUND, KOONATHARA AMSOM, PANAYOOR DESOM P.O., VANIYAMKULAM, PALAKKAD DISTRICT. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R1.2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF PLAINT DATED 6.5.2009 IN O.S. NO.164 OF 2009 ON THE FILE OF THE MUNSIFF'S COURT, OTTAPPALAM. EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT DATED 3.8.2009 FILED BY DEFENDANT NOS.1 AND 2 IN O.S. NO.164 OF 2009 ON THE FILE OF THE MUNSIFF'S COURT, OTTAPPALAM. EXHIBIT P3 TRUE COPY OF AFFIDAVIT AND APPLICATION DATED 28.6.2010 FILED BY PLAINTIFF IN I.A. NO.1170 OF 2010 IN O.S. NO.164 OF 2009 ON THE FILE OF THE MUNSIFF'S COURT, OTTAPPALAM. EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT DATED 1.7.2010 FILED BY DEFENDANT NOS.1 AND 2 IN I.A.NO.1170 OF 2010 IN O.S. NO.164 OF 2009 ON THE FILE OF THE MUNSIFF'S COURT, OTTAPPALAM. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 21.7.2010 OF THE MUNSIFF'S COURT, OTTAPPALAM IN I.A. NO.1170 OF 2010 IN O.S. NO.164 OF 2009. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.23643 of 2010 ==================================== Dated this the 31st day of August, 2010 J U D G M E N T Petitioner claiming to be a member of the CSI Church (for short, the “Church”) laid O.S.No.164 of 2009 in the court of learned Munsiff, Ottappalam seeking a decree for prohibitory injunction to restrain respondents from proceeding on the basis of an advertisement given in the Malayala Manorama daily dated 17.11.2007, 12.03.208 and 25.7.2008 (concerning sale of certain standing timber in the compound of the Church) and to direct respondent Nos.1 and 2 by way of mandatory injunction to give publication inviting quotations showing the number, size and market value of the timber involved before its sale is effected. Petitioner proceeded on the basis that previously there was O.S.No.153 of 2004 instituted by respondent No.3-defendant No.3 contending that sale can only be after proper publication is made but timber is going to be sold for quite inadequate price to suite the whims and fancies of respondent Nos.1 and 2. Respondent Nos.1 and 2 resisted the suit on various grounds. While so petitioner filed I.A. No.1170 of 2010 (Exct.P3) for amendment of W.P(C) No.23643 of 2010 -: 2 :- the plaint to state that respondent Nos.1 and 2 have no authority to sell the standing timber and that said fact was came to the notice of petitioner only recently. Petitioner wanted to delete relief of mandatory injunction from the plaint and incorporate relief of prohibitory injunction against respondent Nos.1 and 2 alienating any property of the Church. That application was objected by respondent Nos.1 and 2 on various grounds including that attempt of petitioner is to withdraw from the admission made in the plaint as to the authority of respondent Nos.1 and 2 to sell the standing timber and that the application is highly belated. Learned Munsiff has upheld that objection and by Ext.P5, order dismissed I.A. No.1170 of 2010 which is under challenge in this Writ Petition. It is argued by the learned counsel for petitioner that application has been made much before the commencement of trial, amendment is necessary to decide the controversy between the parties and that no question of admission is involved since admission cannot confer right on respondent Nos.1and 2 to sell the properties of the Church including standing timber. It is also argued that at any rate in so far as the so called admission related to authority of respondent Nos.1 and 2 it was possible for petitioner to even withdraw from W.P(C) No.23643 of 2010 -: 3 :- the admissions since admissions as aforesaid cannot confer right on respondent Nos.1 and 2 if otherwise they do not have. Reliance is placed on the decision in Pavithran v. Narayanan (1997 [2[ KLT 371) and Kunhaliumma v. Rahiumma (1997 [2] KLT 936). In support of the contention that a request for amendment of pleadings has to be liberally approached so far as it does not work out injustice or prejudice to the opposite party reliance is placed on the decision in Bhaskaran Nair v. Chandramathiyamma (2006 [1] KLT 533). In response it is contended by learned counsel for respondent Nos.1 and 2 that so far as amendment of plaint as distinguished from amendment of written statement is concerned court has to adopt a strict view. Reliance is placed on the decision in Usha Balshaheb Swami v. Kiran Appaso Swami ([2007] 5 SCC 602 (at page 603). According to the learned counsel plaint has proceeded on the basis that that respondents Nos. 1 and 2 have authority to sell the standing timber and even upto paragraphs 6 of the plaint reference is to O.S. No.153 of 2004 and relief claimed therein. Grievance of petitioner was only that it was without proper publication of the W.P(C) No.23643 of 2010 -: 4 :- notice in the daily concerned that respondent Nos.1 and 2 proceeded to sell the standing timber. Learned counsel pointed out that timber has already been cut by the purchaser and stacked in the property of the Church. 2. It is true that in the plaint petitioner has proceeded as if respondent Nos.1 and 2 have the authority to sell the standing timber but the amendment sought for is that they have no such authority, not only relating to the standing timber but any property of the Church. Petitioners says that it is only recently that he learnt that respondent Nos.1 and 2 have no such authority. In Pavithran v. Narayanan (supra) this Court took the view that though a party cannot be allowed to resile from an admission made in the pleadings he can be permitted to explain away the admission. Here petitioner says that it is only recently that he learnt that respondent Nos.1 and 2 have no authority to sell the standing timber. In other words the admission if any contained in the plaint is attempted to be explained by stating that it is only recently that petitioner learnt that respondent Nos.1 and 2 have no such authority. Moreover in Kunhaliumma v. Rahiumma (supra) the view taken is that so W.P(C) No.23643 of 2010 -: 5 :- far as admission does not confer title there is nothing wrong in a party (in that case, defendant) being permitted to withdraw the admission. In Bhaskaran Nair v. Chandramathiyamma (supra) this Court has stated that so far as amendment of pleadings is concerned court has to adopt a liberal approach unless it brought out injustice or prejudice to the opposite party. No doubt the Supreme Court in Usha Balshaheb Swami v. Kiran Appaso Swami (supra) has cautioned that the approach in the matter of amendment of plaint must be stricter than in the matter of amendment of written statement. That is because in the written statement a party can take up inconsistent plea as well. 3. I stated that admission if any is sought to be explained by petitioner stating that he learnt about lack of authority for respondent Nos.1 and 2 in the matter only recently. Whatever so called admission petitioner made in the plaint be as to the authority of respondent Nos.1, that was under a belief at that time that respondent Nos.1 and 2 had the authority but now according to the petitioner he learnt that respondent Nos.1 and 2 have no such authority. That is sufficient to explain the so called W.P(C) No.23643 of 2010 -: 6 :- admission contained in the plaint. 4. It is contended by learned counsel for respondent Nos.1 and 2 that there is no statement in the affidavit in support of I.A.No.1170 of 2010 when and how petitioner got information about lack of authority of respondent Nos.1 and 2 and an omnibus statement that petitioner learnt that respondent Nos.1 and 2 have no authority to sell the timber is not sufficient. But that is a matter for evidence. It is not the function of court to judge on the merit of the claim sought to be incorporated by amendment. Question is only whether amendment sought for is bona fide. I have gone through the application for amendment and do not find anything to hold that amendment is without bona fides so that request of petitioner for amendment ought to be disallowed. Having regard to the facts and circumstances of the case and going through the decisions on the point I am unable to sustain the order passed by the learned Munsiff. Petitioner is entitled to get amendment of the plaint as prayed for. Resultantly, this Writ Petition is allowed. Exhibit P5, order dismissing I.A. No.1170 of 2010 is set aside. That application is W.P(C) No.23643 of 2010 -: 7 :- allowed. Petitioner is permitted to carry out the amendment within fourteen (14) days of receipt of a copy of this judgment in the trial court or within such time as may be extended by that court. Needles to say that contesting respondents will have opportunity to file additional written statement in answer to the amended plaint. THOMAS P. JOSEPH, JUDGE. vsv