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Try out our Premium Member services -- Free for one month.\n\nKerala High Court\nRemya Raj vs Haleema Beevi on 30 September, 2021  OP(C).346/21                       1\n\n\n\n\n            IN THE HIGH COURT OF KERALA AT ERNAKULAM\n                              PRESENT\n                 THE HONOURABLE MR.JUSTICE V.G.ARUN\n THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943\n                       OP(C) NO. 346 OF 2021\n   AGAINST THE ORDER/JUDGMENT IN OS 415/2012 OF PRINCIPAL\n         MUNSIFF COURT ,TRIVANDRUM, THIRUVANANTHAPURAM\nPETITIONER/S:\n\n           REMYA RAJ\n           AGED 39 YEARS\n           D/O.RAJAMANI, SWAMI AYYAPPAN, V.P.XII-648, MOONGODE\n           P.O., THIRUVANANTHAPURAM.\n\n           BY ADVS.\n           M.R.ANANDAKUTTAN\n           SMT.M.A.ZOHRA\n           SRI.MAHESH ANANDAKUTTAN\n           SMT.SHREEJI R. NAIR\n\n\n\nRESPONDENT/S:\n\n    1      HALEEMA BEEVI\n           D/O.RAHIMA BEEVI, T.C.19/2001, ABHISHEKA,\n           MUDAVANMUGHAL, THIRUMALA P.O., THIRUVANANTHAPURAM,\n           NOW RESIDING AT NOORMAHAL, PARUTHITHOPPU, IT ROAD,\n           NEAR SPINNING MILL, BALARAMAPURAM,\n           THIRUVANANTHAPURAM-695501.\n\n    2      HASSANAR,\n           S/O.PEERUMOHAMMED, T.C.19/2001, ABISHEK,\n           MUDAVANMUGHAL, THIRUMALA P.O., THIRUVANANTHAPURAM,\n           NOW RESIDING AT NOORMAHAL, PARUTHITHOPPU, IT ROAD,\n           NEAR SPINNING MILL, BALARAMAPURAM,\n           THIRUVANANTHAPURAM-695501.\n\n    3      THE MANAGING DIRECTOR,\n           KTDFC, THIRUVANANTHAPURAM-695001.\n   OP(C).346/21                          2\n\n            BY ADVS.\n            SRI.A.B.MOHANAKUMAR\n            SHRI.T.P.SAJAN, SC, KTDFC\n\n\n\n\n     THIS     OP   (CIVIL)     HAVING   COME   UP    FOR    ADMISSION    ON\n30.09.2021,      THE   COURT    ON   THE    SAME    DAY    DELIVERED    THE\nFOLLOWING:\n   OP(C).346/21                                 3\n\n\n\n\n                              V.G.ARUN, J.\n               -----------------------------------------------\n                       O.P(C).No. 346 of 2021\n               -----------------------------------------------\n           Dated this the 30th day of September, 2021\n\n                                      JUDGMENT\n\n       The petitioner is the additional 2nd plaintiff in O.S.No.415 of\n\n2012     on      the     files    of     the       Principal     Munsiff's      Court,\n\nThiruvananthpuaram.          The       suit    was    originally      filed   by   the\n\npredecessor-in-interest          of    the    petitioner       with   the     following\n\naverments;\n\n       The plaintiff owns 50 cents of land with a residential building\n\nand other structures. Defendants 1 and 2 induced the plaintiff into\n\nexecuting a sale deed with respect to the property showing the\n\nsale consideration to be Rs.62,50,000/-. Only Rs.49,50,000/- was\n\npaid by defendants 1 and 2 towards the sale consideration and the\n\nplaintiff retained possession of the property, on the specific\n\nunderstanding that possession will be handed over only after\n\npayment of the entire sale consideration. Out of the partial sale\n\nconsideration paid by defendants 1 and 2, they borrowed a major\n\nportion on the strength of cheques and promissory notes. The\n\ncheques     were       dishonoured       on    presentation       and    a    criminal\n   OP(C).346/21                       4\n\ncomplaint was lodged by the plaintiff. The plaintiff also came to\n\nunderstand that defendants had raised a huge loan by mortgaging\n\nhis property with the KTDFC, with the active connivance of the 3 rd\n\ndefendant. While so, defendants 1 and 2 attempted to forcefully\n\nevict the plaintiff from the property and hence the suit was filed\n\nseeking a decree of permanent prohibitory injunction restraining\n\nthe defendants from trespassing into the plaint schedule property,\n\nobstructing his peaceful possession, residence and enjoyment over\n\nplaint schedule property and from committing any waste therein till\n\nthe defendants pay Rs.35 lakhs to the plaintiff. In the suit a\n\ntemporary injunction was granted and the plaintiff continued to be\n\nin possession.\n\n     2. Pending the suit, the original plaintiff died on 24.7.2020\n\nand the petitioner got impleaded as additional 2nd plaintiff on the\n\nstrength of a registered will executed by the original plaintiff\n\nbequesting all his properties to the petitioner. After impleadment,\n\nthe petitioner filed I.A.No.2 of 2020, seeking to amend the plaint on\n\nthe premise that the original plaintiff had filed the suit hastily,\n\nwithout giving proper instructions to his lawyer and hence, there\n\noccurred serious inadequacies in the pleadings and the prayer. By\n\nthe amendment, the petitioner proposed to make additional\n\npleadings with respect to the transaction between the original\n   OP(C).346/21                                 5\n\nplaintiff and defendants 1 and 2 and to substitute the main relief as\n\nunder;\n\n           "A)     to     pass    a   decree   adjudging    the   sale   deed\n     No.2405/2005 of Malaynkeezhu Sub-Registry with respect to\n     the plaint schedule property as void and to declare the\n     original    plaintiff's     title and possession      over the plaint\n     schedule property and to pass a decree of consequential\n     prohibitory        injunction    restraining   the    defendants    from\n     trespassing into the plaint schedule property and obstructing\n     the peaceful possession, residence and enjoyment of the\n     original plaintiff over the plaint schedule building tna dnot to\n     commit waste therein so as to change the present lie and\n     nature of the property in any manner. If in case the court\n     finds that by virtue of the said sale deed the defendants are\n     entitled to claim any right then the defendants 1 and 2 be\n     directed to pay at least the sale consideration as shown in the\n     document as a pre-condition to validate the said document."\n     3. Objection to the amendment application was filed by\n\nrespondents 1 and 2 jointly and by the 3 rd respondent, separately.\n\nThe main objection was that the relief sought to be incorporated is\n\nhopelessly barred by limitation and that if the amendment is\n\nallowed the suit valuation will be beyond the pecuniary jurisdiction\n\nof the Munsiff's Court.\n\n     4. By Exhibit P4 order, the learned Munsiff dismissed the\n\napplication for amendment finding that the relief sought to be\n\nincorporated is barred by limitation. Hence, this original petition.\n\n     5.     Heard              Smt.M.A.Zohra,        for      the        petitioner,\n   OP(C).346/21                        6\n\nSri.A.B.Mohankumar, for respondents 1 and 2 and Sri.T.P.Sajan for\n\nthe 3rd respondent.\n\n     6. Learned counsel for the petitioner contended that, since\n\nthe petitioner was impleaded as additional plaintiff at a later stage,\n\nshe had every right to seek amendment of the plaint, so as to cure\n\nthe infirmities in the plaint. It is pointed out that the original\n\nplaintiff himself had moved an application for amendment, but he\n\nexpired before the application was taken up for consideration. After\n\nimpleadment, petitioner had withdrawn the amendment application\n\nfiled by the original plaintiff with the permission of the court and\n\nhad filed a fresh application. As such, the petitioner cannot be\n\nattributed with delay in filing the application. Further, the\n\namendment having been filed prior to the commencement of trial,\n\nthe interdiction in the proviso to Order VI Rule 17 is not attracted. It\n\nis argued that limitation being a mixed question of law and fact, the\n\ntrial court committed an illegality in rejecting the amendment on\n\nthe ground that the relief sought is barred by limitation. Finally it is\n\nsubmitted that even if the relief is barred by limitation, the court\n\nbelow should have allowed the prayer for amending the pleadings.\n\n     7. The learned counsel for respondents 1 and 2 contended\n\nthat the original plaintiff having made specific averments in the\n\nplaint regarding the transaction, the petitioner cannot be permitted\n    OP(C).346/21                       7\n\nto alter those pleadings. According to the learned counsel, the very\n\nnature of the suit will be changed if the amendments are allowed.\n\nIn any event, the relief sought to be incorporated is barred by\n\nlimitation.\n\n      8. The learned counsel for the 3rd respondent contended that\n\nthe amendment application is filed by the petitioner in collusion\n\nwith respondents 1 and 2, with the intention of delaying repayment\n\nof the huge amount of loan availed by respondents 1 and 2 on the\n\nstrength of the sale deed executed in their favour by the original\n\nplaintiff.\n\n      9. The relief sought in the plaint, as originally filed, is for a\n\npermanent prohibitory injunction restraining defendants 1 and 2\n\nfrom trespassing into the plaint schedule property and committing\n\ndeleterious acts therein, till they pay an amount of Rs.35 lakhs to\n\nthe plaintiff. By the proposed amendment, the petitioner seeks to\n\nsubstitute the relief to a decree, declaring the sale deed executed\n\nby the original plaintiff as void and for consequential prohibitory\n\ninjunction and alternatively, to direct defendants 1 and 2 to pay at\n\nleast the sale consideration as shown in the document as a pre-\n\ncondition for validating the said document, in the event of the\n\ndefendants being found entitled for any right by virtue of the sale\n\ndeed. The sale deed was executed in 2005 and the original suit was\n   OP(C).346/21                            8\n\nfiled only in 2012. The specific pleading is that, out of the sale\n\nconsideration of Rs.62,50,000/-, an amount of Rs.49,50,000/- was\n\npaid by way of demand draft. Of course, the plaintiff has a\n\ncontention that from the partial consideration paid, a major chunk\n\nwas borrowed by defendants 1 and 2 and never repaid. The original\n\nplaintiff, who had executed the sale deed in favour of the 1 st\n\ndefendant, did not seek a declaration that the document is void.\n\nThe settled position is that if an independent suit filed on the date\n\non which the amendment is filed, would be barred by limitation,\n\nthen the amendment cannot be entertained. In Revajeetu\n\nBuilders & Developers v. Narayanaswamy & Sons [(2009) 10\n\nSCC 84], the Honourable Supreme Court opined that the following\n\nbasic principles should be borne in mind while considering an\n\napplication for amendment;\n\n           "Factors to be taken into consideration while dealing\n     with applications for amendments\n           63. On critically analysing both the English and\n     Indian cases, some basic principles emerge which ought to\n     be taken into consideration while allowing or rejecting the\n     application for amendment:\n           (1) whether the amendment sought is imperative for\n     proper and effective adjudication of the case;\n           (2) whether the application for amendment is bona\n     fide or mala fide;\n           (3) the amendment should not cause such prejudice\n     to   the    other    side   which   cannot   be   compensated\n   OP(C).346/21                            9\n\n      adequately in terms of money;\n            (4) refusing amendment would in fact lead to\n      injustice or lead to multiple litigation;\n            (5)     whether       the     proposed    amendment\n      constitutionally or fundamentally changes the nature and\n      character of the case; and\n            (6) as a general rule, the court should decline\n      amendments if a fresh suit on the amended claims would\n      be barred by limitation on the date of application."\nI am unable to accept the contention of the learned counsel for the\n\npetitioner that limitation being a mixed question of law and fact,\n\nthe amendment application ought to be allowed and the parties\n\nallowed to let in evidence on the question of limitation. The relief of\n\ndeclaration would have been barred even if made in the plaint itself\n\nand therefore, cannot be permitted to be brought in by way of\n\namendment. Being so, the additional plaintiff, who is not a party to\n\nthe document, cannot be permitted to challenge the document by\n\nincorporating new pleadings and relief.\n\n     10. A perusal of the amendment application shows that, other\n\nthan the challenge against the sale deed of 2005, there are\n\npleadings pertaining to the relationship between the parties. I am\n\nunable to uphold the finding of the court below that whatever is\n\nsought by way of amendment is inextricably connected with the\n\nrelief sought to be incorporated. Except the amendment sought to\n\nbe incorporated to the cause title and the incorporation of\n   OP(C).346/21                       10\n\nadditional sentence in paragraph 22, introduction of paragraph 23\n\nand substitution of the relief, other pleadings sought to be\n\nincorporated have nothing to do with the prayer for setting aside\n\nthe document. In my opinion, pleadings, other than those\n\npertaining to execution of the sale deed, being clarificatory in\n\nnature, can be allowed.\n\n      In the result, the original petition is allowed in part. The\n\nimpugned order, to the extent it rejects the substitution of the\n\nrelief from permanent prohibitory injunction to a declaration that\n\nthe sale deed is void and the addition of certain words and\n\nsentences to the cause title, paragraphs 22 and 23 of the plaint, is\n\naffirmed. The order, insofar as it rejects the prayer for amending\n\nthe plaint with respect to the pleadings other than those mentioned\n\nabove, is set aside. Being a suit of the year 2012, the court below\n\nshall take earnest efforts to dispose of the suit expeditiously.\n\n\n\n\n                                               Sd/-\n                                          V.G.ARUN, JUDGE\n\nvgs\n   OP(C).346/21                    11\n\n                 APPENDIX OF OP(C) 346/2021\n\nPETITIONER EXHIBITS\n\nEXHIBIT P1            TRUE COPY OF THE PLAINT IN\n                      O.S.NO.415/2012 ON THE FILE OF THE\n                      MUNSIFF'S COURT, THIRUVANANTHAPURAM.\n\nEXHIBIT P2            TRUE COPY OF I.A.NO.2/2020 02.12.2020\n                      SEEKING TO AMEND THE PLAINT INVOLVING THE\n                      PROVISIONS OF ORDER 6 RULE 17 OF C.P.C.\n\nEXHIBIT P3            TRUE COPY OF THE OBJECTION FILED BY\n                      RESPONDENTS 1 TO 3 TO I.A.NO.2/2020.\n\nEXHIBIT P4            TRUE COPY OF THE ORDER OF THE PRINCIPAL\n                      MUNSIFF'S COURT, DATED 18.01.2021 IN\n                      I.A.NO.2/2020 IN O.S.NO.415/2012.