IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 OP(C).No. 2466 of 2011(O) ----------------------------------- AGAINST THE ORDER DATED 02/06/2011 IN IA.54/2010 IN OS.353/2005 of MUNSIFF COURT,CHAVAKKAD .................... PETITIONER ------------------- K.A.ABDUL SALAM, S/O. KALATHIPARAMBIL AHAMMU, RESIDING AT HOUSE NO.31/474, THRISSUR CORPORATION, THRISSUR TALUK. BY ADV. SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN SMT.S.JAYASREE RESPONDENT(S): --------------------- MUHAMMED NISHAM, S/O. ADAKKAPARAMBIL ABDUL KHADER, ADAKKAPARAMBIL HOUSE, MUTTICHOOR DESOM, PADIYAM VILLAGE, THRISSUR TALUK, PIN-680 695. ADV. SRI.TOM K.THOMAS THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2466 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE AFFIDAVIT AND PETITION IN I.A.NO.54/2010 IN O.S.NO.353 OF 2005 ON THE FILE OF THE MUNSIFF COURT, CHAVAKKAD. EXT.P2 : COPY OF THE COUNTER STATEMENT DATED 17.7.2010 FILED BY THE RESPONDENT IN I.A.NO.54 OF 2010 IN O.S. NO.353 OF 2005 EXT.P3 : COPY OF THE ORDER DATED 2.6.2011 IN I.A. NO.54 OF 2010 IN O.S. 353 OF 2005 OF THE MUNSIFF COURT, CHAVAKKAD. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE sou. THOMAS.P. JOSEPH, J ------------------------------------ O.P(C).No. 2466 OF 2011 ----------------------------------------- Dated 11th August, 2011 J U D G M E N T Petitioner is the plaintiff in O.S.No.344 of 2005 of Court of learned Munsiff, Chavakkad. That suit is for prohibitory injunction to restrain respondent who is a tenant of rooms referred to in the plaint schedule from trespassing into other portions of the building not covered by the lease arrangement. After the issues were framed, the case was posted for trial in the list. Petitioner filed I.A.No.54 of 2010 seeking amendment of the plaint to incorporate an additional relief of mandatory injunction to direct the respondent remove the generator box allegedly kept by him on the varanda of the building. That portion according to petitioner, did not form part of the rental arrangement. That application though opposed, was allowed by learned Munsiff which respondent challenged in this court in W.P.C.No.9663 of 2010. This court allowed that writ petition and remanded I.A.No.54 of 2010 to the learned Munsiff for consideration of the proviso to Rule 17 of Order VI of the Code of Civil Procedure (for short “the Code”). Learned Munsiff considered the proviso in the light of judgment in W.P.C.No.9663 of 2010 and found that case of OPC. No.2466/11 2 petitioner did not come within the scope of said proviso and consequently dismissed I.A.No.54 of 2010. The said order is under challenge in this proceeding. 2. Learned counsel for petitioner contended that the proviso to order VI rule 17 is not applicable since recording of evidence had not commenced. Though issues are already been framed and the case was listed, there is sufficient justification for petitioner not seeking amendment of plaint as prayed for in I.A.No.54 of 2010 earlier. Learned counsel pointed out that even in the plaint, it is avered that respondent has kept the generator box on the varanda which did not form part of the rental arrangement. If that be so, the relief sought for by amendment of plaint does not alter nature of the suit or cause prejudice to the respondent. Learned counsel has placed reliance on the decision Eapen Antony Vs. Joseph 2009 (2) KLT 849, where it was held that in appropriate cases, amendment can be allowed at any stage, even after evidence is closed but before judgment is pronounced if it did not alter the nature of suit or causes prejudice to the opposite side. 3. In response, it is contended by learned counsel for respondent that even in paragraph 4 of the plaint, petitioner OPC. No.2466/11 3 avered that in respect of the (alleged) unauthorised acts of respondent, petitioner will be taking appropriate action in the course of time and hence, the request for amendment at this stage cannot be allowed, remedy of petitioner being to file a separate suit for mandatory injunction as he opted for in paragraph 4 of the plaint. Learned counsel has submitted that if amendment is allowed, it would take away the right of respondent, to plead limitation in answer to the prayer for mandatory injunction. 4. Though initially the Supreme Court observed that trial commences on framing of issues, later it was pointed out that proceedings commenced on the settlement of issues and the case is set down for recording of evidence. Once proof affidavit in lieu of chief examination is filed, recording of evidence starts. It was also pointed out that framing of issues is one of the steps in recording of evidence. 5. True that this court in the judgment in W.P.C.9663 of 2010 directed learned Munsiff to consider whether the proviso to Rule 17 of Order 6 has been satisfied and the learned Munsiff was bound to consider that issue. Now the question is whether on the facts pleaded and the materials on record, request of OPC. No.2466/11 4 petitioner for amendment of plaint is to be allowed. In deciding that, I must bare in mind that recording of evidence has not started though the case was posted for trial in the list. 6. The suit was originally filed for a decree of injunction against respondent from trespassing into any portion of the building (not covered by lease) or commit act of waste in such place. In the plaint it is stated that respondent has placed a generator box on the varanda of the building which (portion) did not form part of the rental arrangement. When the necessary foundation for seeking a relief by way of amendment may not attract the bar of limitation. Though learned counsel for respondent has pointed out from paragraph 4 of the plaint about petitioner opting to take other steps against acts done by the respondent which affected utility of building itself, a reading of paragraph 4 of the paint shows that the said averment related to acts allegedly done by the respondent in the premises let out and not on the varanda where the generator box is allegedly kept and which allegedly did not form part of the lease. 7. Now, on the question whether prayer for mandatory injunction if raised by amendment would deprive the respondent's opportunity to resist that prayer on the ground of limitation, it OPC. No.2466/11 5 can be made clear that amendment if made, will not relate back to the date of suit, so that it is open to the respondent to resist the relief of amendment of plaint on the ground of limitation. 8. Now coming to the proviso to rule 17 of order VI of the Code, in the decision relied on by learned counsel for the petitioner, various circumstances under which a party may omit to make necessary plea in his pleadings are highlighted. I am inclined to think that there was no lack of diligence or laches on the part of petitioner. Having heard counsel on both sides, I am inclined to think in the light of pleadings already made in the plaint, incorporating the prayer of mandatory injunction by amendment would either alter nature of the case or cause prejudice to the respondent. Hence I am inclined to allow the request. Resultantly, this Original Petition is allowed, Ext.P3 order dismissing I.A.No.54 of 2010 is set aside and that application will allowed subject to the rider that the prayer for mandatory injunction if incorporated in the plaint would not relate back to the date of suit and it will be open to the respondent to resist that relief on the ground of limitation. The court below shall ultimately decide whether on the averments in the plaint that relief is barred OPC. No.2466/11 6 by limitation. Petitioner shall carry out the amendment within two weeks from the date, on which a copy of this judgment is received in the trial court. Needless to say that after amendment is carried out, respondent will get the opportunity to file additional written statement in answer to the amended plaint. Sd/- THOMAS.P. JOSEPH, JUDGE. Sou. // True copy // P.A to Judge.