IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 FAO.No. 170 of 2009() --------------------- AS.30/1999 of ADDL. DISTRICT COURT-II, MAVELIKKARA OS.225/1996 of MUNSIFF COURT,HARIPAD .................... APPELLANT/RESPONDENT IN A.S/DEFENDANT:- ------------------------------------------------------ PONNAPPAN,S/O.PAPPU, PUTHENPARAMBIL HOUSE,ERIKKAVU MURI, KUMARAPURAM VILLAGE,KARTHIKAPPALLY TALUK. BY ADV. MR. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) RESPONDENT/APPELLANT IN A.S/PLAINTIFF:- -------------------------------------------------- SUKUMARAN, OTTATHENGIL HOUSE,THOTTAPPALLY MURI, PURAKKADU VILLAGE,AMBALAPPUZHA TALUK. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- F.A.O. No. 170 of 2009 ---------------------------------------------------- Dated this the 27th day of July, 2009. JUDGMENT The defendant in O.S. No. 225 of 1996 on the file of the Munsiff's Court, Haripad is the appellant in this appeal filed under Order 43 Rule 1(u) C.P.C. The impugned order is a remand order passed by the lower appellate court, namely, Additional District Judge-II, Mavelikkara in A.S. No. 30 of 1999. 2. The facts leading to the impugned remand order can be summarised as follows:- The respondent/plaintiff is none other than the brother of the appellant/defendant. O.S. No. 225 of 1996 was instituted by the respondent herein for recovery of vacant possession of plaint schedule item Nos. 2 and 3 (which are two sheds) with future rent therefrom. The plaint schedule item No.1 is 14 ½ cents of land and plaint schedule item Nos. 2 and 3 are two sheds situated on the plaint schedule item No.1. The suit was filed in respect of the said two F.A.O. No. 170 of 2009 : 2 : sheds alleging that the defendant's brother was doing business in coir products and while so, he was permitted by the petitioner to occupy the sheds as a licencee. The suit was resisted by the appellant contending, inter alia, that an extent of 31 cents including plaint schedule item No. 1(14 ½ cents) was orally agreed to be sold by the plaintiff to the defendant in the presence of their mother for a sum of Rs.6,200/- at the rate of Rs.200/- per cent and the defendant had paid the full amount to the plaintiff on 10.02.1979 and the entire 31 cents was put in possession of the defendant along with prior title deed. The trial court as per judgment and decree dated 18.09.1998, dismissed the suit holding, inter alia, that the plaintiff was not having any consistent case, that the plaintiff who came to court with a plea of licence, subsequently came out with a case of lease at the stage of evidence. Aggrieved by the decree passed by the trial court, the plaintiff filed A.S. No. 30 of 1999 before the Additional District Court, Mavelikkara. In the said appeal, he filed an application as I.A. No. 146 of 1999 to amend the F.A.O. No. 170 of 2009 : 3 : plaint so as to incorporate a prayer for declaration that the plaintiff has title over the plaint schedule item No.1 admeasuring 14 ½ cents and for recovery of possession of the same in case the court were to find that the plaintiff was not in possession of the same or in the alternative, to withdraw the suit under Order 23 Rule 1 C.P.C with permission to institute another suit. On 12.12.2003, the lower appellate court dismissed the said application and rejected the prayer of the plaintiff to withdraw the suit holding that by allowing the plaintiff to withdraw the suit, the court would have nullifying the findings in favour of the respondent/defendant. The prayer for amendment of the plaint was dismissed as not pressed. Aggrieved by the order passed in I.A. No. 146 of 1999, the plaintiff filed W.P. (C) No. 17473 of 2004 before this Court. As per judgment dated 16.01.2007, this Court held that eventhough the rejection of the prayer to withdraw the suit under Order 23 Rule 1 C.P.C was justified, the petition to amend the plaint deserved consideration by the lower appellate court and F.A.O. No. 170 of 2009 : 4 : therefore directed the lower appellate court to consider the prayer under Order 6 Rule 17 C.P.C to amend the plaint and pass appropriate orders in accordance with law. Thereafter, as per the impugned judgment dated 12.06.2009, the lower appellate court allowed the plaintiff's prayer to amend the plaint and remanded the case to the trial court for fresh disposal. It is the said remand order which is assailed in this appeal. 3. The following is the substantial question of law formulated in the memorandum of appeal:- Is the appellate court justified in allowing application for amendment seeking declaration of title and recovery of possession, which will alter the nature and character of the suit, without recording any reason, only to allow the plaintiff to plead and prove a better case, contrary to his plea that the defendant is licencee? 4. I heard the learned counsel for the appellant/defendant. 5. The main submission made before me in support of the appeal are the following:- The plaintiff came to court pleading a licence in favour of the defendant in respect of the two sheds, namely, plaint F.A.O. No. 170 of 2009 : 5 : schedule item Nos. 2 and 3. The said case is given a go bye by coming out with an amendment of the plaint so as to convert the suit for eviction in respect of the two sheds into one for recovery of possession of the larger extent. By allowing the said prayer, the lower appellate court has virtually allowed the plaintiff to completely alter the scope of the suit as originally instituted. Since the trial court had disposed of the suit not on a preliminary point and also since there was a full fledged trial, the lower appellate court had no jurisdiction to invoke Rules 23 and 23(A) of Order 41 C.P.C and remand the case to the trial court for a re-trial. 6. I cannot agree with the above submissions. It is true that the suit as originally laid was one for eviction of the defendant from plaint schedule item Nos. 2 and 3 which are two sheds standing on the plaint schedule item No.1 which is 14 ½ cents of land. It is also true that the plaintiff alleged that the defendant who is the plaintiff's brother, was permitted to occupy the two sheds for carrying on the coir business runs by him and the defendant was, thus, a F.A.O. No. 170 of 2009 : 6 : licencee in respect of the two sheds. But then, the stand taken by the appellant/defendant in the written statement was that the entire plaint schedule item No.1 together with 15 cents lying to the south of the same and having a total extent of 31 cents was orally agreed to be sold by the plaintiff to the defendant in the presence of their mother for a sum of Rs.6200/- and the defendant had paid the full amount of consideration on 10.02.1979 and he was put in possession of the property along with the prior title deeds. The plaintiff while instituting the suit, could not anticipate such a larger contention by the defendant . The appellant by setting up an oral agreement for sale of a larger extent of 31 cents including the plaint schedule item No.1, was virtually admitting the plaintiff's title over the plaint schedule item No.1 over which the plaint schedule item Nos. 2 and 3 are situated. The trial court, instead of proceeding on the case of the defendant on whom the burden lay, non-suited the plaintiff for the reason that at the stage of evidence, he set up an oral lease. It was F.A.O. No. 170 of 2009 : 7 : challenging the dismissal of the suit that the plaintiff filed the appeal before the lower appellant court. It was in the said appeal, the plaintiff filed the above application. Since the lower appellate court dismissed his application to withdraw the suit, he wanted his application to amend the plaint to be pursued. This Court in the judgment dated 16.01.2007 in W.P.(C) No. 17473 of 2004 directed the lower appellate court to consider the prayer of the plaintiff to amend the plaint while disposing of the appeal. It was while disposing of the appeal that the lower appellate court considered the plaintiff's prayer for amendment of the plaint. The said prayer was necessitated on account of the larger contention advanced by the defendant/appellant over the entirety of plaint schedule item No.1. I do not find any illegality in the lower appellate court allowing the application to amend the plaint. It is to be born in mind that an application to amend the plaint in a case of the present nature should be allowed so as to prevent multiplicity of suits. Since the amendment of the plaint has been allowed, F.A.O. No. 170 of 2009 : 8 : it became necessary for a re-trial of the case. Under these circumstances, invocation of Rules 23 and 23(A) of Order 41 C.P.C by the lower appellate court cannot be faulted. The appellant will have an opportunity to file an additional written statement and the trial court will be framing additional issues. No question of law, much less, any substantial question of law arises from the remand order passed by the lower appellate court. The amendment of the plaint was fully justified in the light of the contention raised by the appellant in the written statement. The trial court shall dispose of the suit untramelled by the observations in the impugned judgment as well as in this judgment. This appeal is accordingly dismissed in limine. Dated this the 27th day of July, 2009. V. RAMKUMAR, JUDGE. rv F.A.O. No. 170 of 2009 : 9 :