IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 WP(C).No. 23833 of 2008(K) -------------------------- OS.521/2000 of MUNSIFF COURT,ATTINGAL .................... PETITIONER(S)/1ST DEFENDANT: ----------------------------- MUHAMMED LLIYAS, S/O.MUHAMMED THAMPI, RESIDING AT ERAMALLI VEEDU, NANDAIVANAM, NAGAROOR VILLAGE AND DESOM, ATTINGAL, TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S)/PLAINTIFFS: -------------------------- 1. IBRAHIM MUSLIYAR, S/O.KASSIMKUNJU LABBA, KALAYEE VEEDU, NEAR KOLLAYIL U.P.S. JUNCTION, CHITHARA VILLAGE, MADATHARA HAVING ALSO KULANGARA VEEDU, NANDAIVANAM, NAGAROOR VILLAGE AND DESOM. 2. SULAIMAN PILLAI, S/O.ALIYARU KUNJU, AATTARIKATHU VEEDU, VAVUPURA, CHETTACHAL, VITHURA HAVING ALSO KULANGARA VEEDU, NANDAIVANAM, NAGAROOR VILLAGE AND DESOM. 3. SULAIMAN MUSALIAR, S/O.ABDUL HAMEED, SIRAJ MANZIL, KULAMBIKKADA, PAZHAVILA, THEKKUMKARA MURI, NEDUMANGADU VILLAGE. 4. HAJIRA BEEVI, D/O.ASSANARU PILLAI, A.H.S.MANZIL, PULIPPARA, PANGODU VILLAGE. ADV. SRI.R.ANILKUMAR FOR R1 & 2 SRI.P.BANI FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.23833/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 5.7.2006 ON I.A.NO.2184/2006 IN O.S.NO.521/2000 PENDING BEFORE THE MUNSIFF COURT, ATTINGAL. EXT.P2: COPY OF THE I.A.NO.2184/2006 IN O.S.NO.521 OF 2000 PENDING BEFORE THE MUNSIFF COURT, ATTINGAL. EXT.P3: COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P2. EXT.P4: COPY OF THE PLAINT IN O.S.NO.521 OF 2000 PENDING BEFORE THE MUNSIFF COURT, ATTINGAL. EXT.P5: COPY OF THE WRITTEN STATEMENT IN O.S.NO.521 OF 2000 PENDING BEFORE THE MUNSIFF COURT, ATTINGAL. EXT.P6: COPY OF THE JUDGMENT IN W.P.(C).NO.16802/2005 OF THIS HONOURABLE COURT. EXT.P7: COPY OF THE ORDER IN I.A.NO.384/2006 IN O.S.NO.521 OF 2000 PENDING BEFORE THE MUNSIFF COURT, ATTINGAL. EXT.P8: COPY OF THE ORDER DATED 21.3.2006 IN I.A.NO.522 OF 2006 IN O.S.NO.521 OF 2000 PENDING BEFORE THE MUNSIFF COURT, ATTINGAL. EXT.P9: COPY OF THE JUDGMENT DTED 22.6.2006 OF THIS HONOURBALE COURT IN W.P.(C).NO.10947 OF 2006. RESPONDENTS EXHIBITS: EXT.R1(A): COPY OF THE JUDGMENT IN O.S.NO.27/1981 PASSED BY THE MUNSIFF'S COURT, ATTINGAL. EXT.R1(B): COPY OF THE JUDGMENT IN O.S.NO.133/1997. EXT.R1(C): COPY OF THE JUDGMENT IN R.P.NO.946/05 IN W.P.(C).NO.16802/02. EXT.R1(D): COPY OF THE ORDER PASSED IN W.P.(C).NO.4674/06. EXT.R1(E): COPY OF THE JUDGMENT IN R.P.NO.575/06 IN W.P.(C).NO.10947/06. EXT.R1(F): COPY OF THE JUDGMENT IN A.S.NO.70/1987. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.23833 OF 2008 () ----------------------------------- Dated this the 31st day of March, 2010 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records relating to Ext.P1 and an order be passed setting aside Ext.P1. ii. to direct the lower court not to proceed on the basis of Ext.P1 order in any petition or proceeding pending consideration before the lower court. iii. to stay all proceedings pending before the lower court. 2. Respondents 1 and 2 filed a suit for framing a scheme in respect of a 'khabaradi' situate in a property having an extent of 96 cents. That suit was filed in a representative capacity on behalf of the members of a family. Pursuant to publication effected, two more parties joined as additional plaintiffs in the WPC.23833/08 2 suit. Suit claim was resisted by the 1st defendant contending that he has got absolute title and possession over the suit property. On the application moved by the plaintiffs, a Receiver was appointed to manage the affairs of the khabaradi after taking possession of the plaint property. In the light of the description of the plaint property as given in the plaint, serious disputes arose between the parties as to what is the subject matter, more particularly, the actual extent of the property involved in the suit. The 1st defendant contended that the suit property as described in the plaint schedule and also as borne out by the allegations in the plaint is confined to two cents comprising that khaber of a holy man. On the other hand, the plaintiffs contended that the suit property covered 96 cents comprising the khaber over which disputes persisted between the parties. Plaintiffs had moved an application alleging that despite the order passed by the court appointing the 1st plaintiff as the Receiver and specific directions given by the court, the 1st defendant surrendered 2 cents comprising the khaber alone and not the rest of the property. The court below after considering the matter with reference to the objections raised by the 1st WPC.23833/08 3 defendant passed an order directing the 1st defendant to surrender the remaining extent of the property also to the Receiver appointed by the court. That order was challenged before this Court by the 1st defendant filing a writ petition. This Court set aside the order referred to above passed by the court below directing that court to reconsider the matter. Ext.P9 is the copy of that order. A review petition was filed by the plaintiff taking exception to some of the observations made in Ext.P9 order. That review was allowed by Ext.R1 (c) order dated 20.12.2005. While disposing of the review petition, taking note that an amendment application had been moved by the plaintiff to amend the plaint, a direction was given to the court to dispose that application also in accordance with law after hearing both sides. Pursuant to Ext.R1 (c) order passed by this Court, the application moved by the plaintiff for amendment of the plaint after hearing both sides was allowed by Ext.P1 order. Propriety and correctness of Ext.P1 is challenged in the writ petition by the 1st defendant invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. WPC.23833/08 4 3. I heard the counsel on both sides. Inviting my attention to the allegations raised in the plaint and, particularly, the reliefs canvassed with reference to the schedule description and the court fee paid, the learned counsel for the petitioner contended that the suit has been framed for settling of a scheme only in respect of the khaber comprising the two cents of the property and that alone. When that be so, it is submitted by the learned counsel, the present amendment canvassed by the plaintiff as if the suit had been instituted for settling a scheme in respect of a larger extent of property 96 cents comprising the khaber is not only not allowable but even not entertainable. The schedule description specifically shows that the khaber situated in 2 cents of property is the subject matter of the suit and in respect of that khaber alone, settling of a scheme for its administration through the intervention of the court is canvassed, submits the counsel. After getting an order of appointment of a Receiver over the plaint property as described, it is submitted by the counsel, the attempt of the plaintiffs is to dispossess the first defendant from the rest of the property, 94 cents, which has been under his continuous possession and enjoyment, and that too, denying the WPC.23833/08 5 rights claimed by the plaintiffs and others. The plaintiffs had been worsted in a previous litigation and the right of the 1st defendant recognising his possession and enjoyment over the 96 cents of property was approved by the court, is the submission of the counsel. Even in the plaint the previous litigation and also the possession of the 1st defendant is admitted submits the counsel. The amendment allowed by the court by Ext.P1 order in such circumstances is liable to be set aside, submits the counsel. On the other hand, the learned counsel appearing for the respondents submitted that possession of the 1st defendant over the 96 cents as claimed by that defendant has never been admitted in any previous proceeding or in the present plaint. It is the case of the plaintiffs that the entire property belonged to the family and the eldest male member of the family has right only to administer the khaber. The 1st defendant, though not the eldest member, has usurped the administration of the khaber is the case projected for the reliefs canvassed in the suit for settling a scheme. The real controversy between the parties relate to 96 cents of property comprising the khaber but when the schedule description was incorporated in the plaint, by WPC.23833/08 6 inadvertence, after describing the 96 cents, an addition was made with respect to the khaber comprising of 2 cents. What is sought for under the amendment is only deletion of that addition made in the plaint schedule description is the submission of the counsel. No interference with Ext.P1 order passed by the court below is called for in exercise of the extraordinary jurisdiction vested with this Court when there is no impropriety leave alone jurisdictional infirmity in the order of the lower court, according to the counsel. 4. Having regard to the submissions made by the counsel with reference to Ext.P1 order challenged in the writ petition and also various documents produced, some of which relate to the orders/judgments pronounced in the previous litigation between some of the parties as well, I find that the amendment allowed by the court permitting the plaintiff to delete a portion of the statement made in the plaint schedule description does not warrant any interference. On the allegations raised in the plaint, as it is now stated, whether the plaintiffs can sustain the suit is not a matter to be looked into at this stage. From the WPC.23833/08 7 materials produced in the case, which include those relating to the previous litigation between the parties, I am satisfied that the real issue is not confined to the 2 cents comprising the khaber but the entire 96 cents of property including that khaber. May be the plaint was not properly drafted and the reliefs canvassed therein and also the court fee paid are lacking in material particulars; but, the real controversy emerging for adjudication by the court as borne out by the pleading of the parties and also the materials produced cannot be overlooked by the court when an amendment to the pleading is sought for by one or the other party. The very purpose of the rule under Order VI Rule 17 of the CPC is to permit such amendments which are required to resolve the real controversy arising between the parties. True, the amendment allowed may lead to taking over possession of the entire extent (96 cents) by the Receiver appointed by the court, but there also, I find from some of the orders/judgments rendered in a previous litigation, which have attained finality, that the claim raised by the 1st defendant in those proceedings were only as a co-owner and that too only in respect of one half of the 96 cents of the property. That also WPC.23833/08 8 persuade me to hold that no interference with Ext.P1 order allowing the amendment is called for where it prima facie appears that such amendment is required for resolving the real controversy arising between the parties in the suit. However, I make it clear that none of the observations made in this judgment shall have any reflection or bearing in the decision to be rendered by the court in the suit that, no doubt, has to be rendered on the evidence to be produced in the case, in accordance with law. Having regard to the fact that the suit has been instituted atleast a decade ago, there will be a direction to the court below to dispose the suit as expeditiously as possible, but, after giving reasonable opportunity to both sides to lead evidence, at any rate, within a period of four months from the date of receipt/production of a copy of this judgment. Writ petition is accordingly disposed. S.S.SATHEESACHANDRAN JUDGE prp WPC.23833/08 9