IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WP(C).No. 6083 of 2009(O) ------------------------- OS.68/2006 of MUNI-MAGI COURT, DEVIKULAM) .................... PETITIONER(S): 1ST DEFENDANT: --------------------------------------------------- REYNOLD MENDEZ, D/O. ROBERT MENDEZ, M.P XI/674, FACTORY DIVISION, PERIVARAI ESTATE, MUNNAR , KDH VILLAGE. BY ADV. MR.T.J.MICHAEL RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. M/S TATA TEA LTD., A PUBLIC COMPANY, INCORPORATED IN INDIA WITH ITS REGISTERED OFFICE AT 1 BISHOP LEFROY ROAD, CALCUTTA AND HAVING ITS REGIONAL OFFICE AT MUNNAR, KDH VILLAGE REPRESENTED BY ITS POWER OF ATTORNEY HOLDER M/S KANNAN DEVAN HILLS PLANTATINS COMPANY PVT.LTD., KDHP COMPANY HOUSE, NH 49, MUNNAR, KDH VILLAGE. 2. K.J. DILIP, S/O. LATE K.J. JAMES, POTTANKULAM HOUSE, LAKSHMI ESTATE, MUNNAR. R1 BY ADVS. MR.JOSEPH KODIANTHARA, MR.TERRY V.JAMES. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.6083/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.68/06 DTD. 20/03/06. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS DTD. 07/11/06. P3: COPY OF THE PETITION FOR AMENDMENT IN IA 5/09 DTD. 03/12/08. P4: COPY OF THE OBJECTION TO THE AMENDMENT PETITION DTD. 12/01/09. P5: COPY OF ORDER IN I.A.NO.5/09 IN O.S.68/06 DTD. 21/01/09. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.6083 OF 2009 () ----------------------------------- Dated this the 3rd day of June, 2009 JUDGMENT The writ petition is filed under Article 227 of the Constitution of India to set aside the order of dismissal in I.A.No.5/09 in O.S.No.68/06 on the file of the Munsiff Court, Devikulam dated 21.1.09 and allow that application. 2. Petitioner is the 1st defendant in O.S.No.68/2006 pending on the file of the Munsiff's Court, Devikulam. The first respondent/plaintiff filed a suit to declare its title over the plaint schedule building allowing recovery of its possession from the defendants/the petitioner and 2nd respondent. The plaint schedule building was let out to the 1st defendant under a license deed and in violation of the terms thereunder he inducted the 2nd defendant also in the building was the case of the plaintiff. Both the defendants together filed a joint written statement contending that the 1st defendant obtained possession of the building as a lessee from the plaintiff and it was not under a WPC.6083/2009 2 license deed as alleged. The defendants contended that as a lessee, he is entitled to the statutory protection from eviction from the building. After the suit was listed for trial and affidavit in chief was filed on behalf of the plaintiff the defendants moved an application for amendment of their written statement to raise a plea that the title over the property had already vested with the Government and the 1st defendant is entitled to the status of a 'tenant' under the Kerala Land Reforms Act. He advanced a case that his grandfather had obtained possession of the building and premises as early as in 1964 and by virtue of his occupation in continuation of his grand father, he is entitled to fixity of tenure over the building and appurtenant premises. The amendment sought for was objected to by the plaintiff contending that an inconsistent and totally conflicting case than what was presented in the written statement is sought to be introduced to nullify the admissions already made that the plaintiff had title over the building which was sought to be recovered from the possession of the defendant. The only plea canvassed in the previous written statement, it was contended, was claiming the status of a lessee of the building disputing the claim he was only a licensee. Under the proposed amendment, it was submitted the defendants WPC.6083/2009 3 wanted to introduce a new case that they are deemed tenants entitled to the protection covered by the respective statute. The learned Munsiff, after hearing both sides, found that the proposed amendment sought by the defendants in their written statement after the case has been listed for trial cannot be entertained both on the ground of the bar under the amended provisions of Order 6 Rule 17 C.P.C. and also on the merits of the case advanced for such amendment. Ext.P5 is the order passed by the learned Munsiff. Impeaching the correctness of that order, contending that it is not proper and legal, the petitioner/1st defendant has filed this Writ Petition invoking the supervisory jurisdiction of this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. Learned counsel for the petitioner submitted that the defendant can set up inconsistent pleas to resist the relief claimed by the plaintiff and even if any admission had been made in the previous written statement, in the nature of the relief claimed, declaration of title on which recovery was sought for, the proposed amendment will not have any significance since the plaintiff has to establish its title; and, admission of the defendant will not confer title. It is further submitted that the amendment sought for by the WPC.6083/2009 4 defendant is essential for a proper adjudication of the disputes involved in the suit and if that is not allowed, it will cause him irreparable injury. Countering the argument advanced by the counsel for the petitioner, the learned counsel for the respondent/plaintiff submitted that there is no merit in the proposed amendment and a new case is sought to be introduced totally different from what was set up in the written statement to nullify the admissions made in the written statement. The trial of the case has already started is also highlighted by the learned counsel submitting that the plaintiff as part of its evidence has filed an affidavit towards examination in chief of its witness and the belated application moved for amendment of the written statement by any count was not at all entertainable, and it was rightly and correctly dismissed by the learned Munsiff. What is sought to be advanced by way of amendment in the written statement, if it were true, ought to have been set up in the previous written statement as it related to the right claimed by the defendant over the building, admittedly, under his occupation submits the counsel for the plaintiff. 4. Having regard to the submissions made and taking note of the facts and circumstances involved with reference to the WPC.6083/2009 5 materials produced in the Writ Petition, I find that the order passed by the learned Munsiff declining the request of the defendants for amendment of their written statement is proper, valid and correct. There is no impropriety or illegality in Ext.P5 order whereunder the learned Munsiff, after examining the merit of the proposed amendment has formed the conclusion that the new case sought to be set up by the defendants nullifying the admissions made in the previous written statement was not at all bonafide and, further, the bar under Order 6 Rule 17 applied in full force on the maintainability of the petition moved for amendment. I do not want to express any opinion on the merits of the case set up by the rival side, but, only to state that Ext.P5 order does not suffer from any infirmity calling for its interference by invoking the supervisory jurisdiction of this court under Article 227 of the Constitution of India. The Writ Petition is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE srd WPC.6083/2009 6