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Judges : PADMANABHAN
PARU - Appellant
Versus
GOPALAKRISHNAN EZHUTHASSAN - Respondent
Case No : C.R.P. No. 917 of 1987
Decided On : 07/29/1987
Advocates Appeared :
K.T. Sankaran; For Petitioners P.N.K. Achan; For Respondent
Amendment of Written Statement - Property Dispute - Kerala Land Reforms Act - S.3(1)(ii), S.152, S.153, O.6 R.17 - The court allowed the amendment of the written statement to include the claim of kudikidappu right, as it was found to be necessary for the determination of the real controversy between the parties and did not work injustice to the opposite side. The court emphasized that the principles applicable to amendment of plaints are equally applicable to amendment of written statements, and that the amendment sought should not be inconsistent with the original plea and should not defeat the plaintiff's right. The court also highlighted that the rejection of the application for amendment was wrong, as it did not involve introducing a new and different case or relief absolutely inconsistent with the original claim. The court allowed the amendment and directed the trial court to refer the claim of kudikidappu right to the Land Tribunal and proceed to dispose of the suit on the merits after obtaining a finding from the Land Tribunal on the claim of kudikidappu right if it is disputed.
Fact of the Case:
The suit involved a property dispute over a 79 cents land building. The plaintiff alleged that the defendants encroached upon the property, while the defendants claimed tenancy right over 50 cents of the property and contended that they are residing in the building which was put up by them. The question of tenancy was referred to the Land Tribunal, which found tenancy right against the defendants and that the transaction was relating to a building alone, covered by S.3(1)(ii) of the Kerala Land Reforms Act.
Finding of the Court:
The court found that the amendment of the written statement to include the claim of kudikidappu right was necessary for the determination of the real controversy between the parties and did not work injustice to the opposite side. The court emphasized that the rejection of the application for amendment was wrong, as it did not involve introducing a new and different case or relief absolutely inconsistent with the original claim.
Issues: The main issue was whether the defendants should be allowed to amend the written statement to include the claim of kudikidappu right, and whether the rejection of the application for amendment was justified.
Ratio Decidendi: The court held that the principles applicable to amendment of plaints are equally applicable to amendment of written statements, and that the amendment sought should not be inconsistent with the original plea and should not defeat the plaintiff's right. The court also emphasized that the rejection of the application for amendment was wrong, as it did not involve introducing a new and different case or relief absolutely inconsistent with the original claim.
Final Decision: The court allowed the amendment of the written statement and directed the trial court to refer the claim of kudikidappu right to the Land Tribunal and proceed to dispose of the suit on the merits after obtaining a finding from the Land Tribunal on the claim of kudikidappu right if it is disputed.
1. Defendants are the revision petitioners. They at first moved the court by an interlocutory application for leave to amend the written statement. That was disallowed on two grounds. (1) No law allows amendments of writ ten statement and their remedy is only to, apply under 0.8 R.9 for leave to file an additional written statement and (2) the amendments sought for are inconsistent with the original contentions. When they applied under 0.8 R.9 by another application with a written statement, that prayer too was rejected on the ground of delay. Hence they came up in revision.
2. The suit property is 79 cents. It belonged to plaintiff's brother Narayanan Ezhuthasan. Plaintiff got it under a will of his brother. The suit was filed on the allegation that defendants, who were permitted by Narayanan Ezhuthassan to reside in the building for a monthly rent of 12 annas, encroached upon the property. Prayer in the suit is for recovery of possession of the land building. Defendants claimed tenancy right over 50 cents out of the suit property and contended that they are residing in the building which was put up by them. They also claimed to have obtained a purchase certificate.
3. The question of tenancy was referred to the Land Tribunal. Tenancy right was found against. It was also found by the Land Tribunal that the plaintiff succeeded in proving that the transaction was relating to a building alone and therefore covered by S.3(1)(ii) of the Kerala Land Reforms Act which provides that nothing in Chap.2 shall apply to leases only of buildings, including a house, shop or warehouse and the site thereof with the land, if any, appurtenant thereto. When the defendants claimed kudikidappu right before it the Land Tribunal said that though the Explanation to the above provision states that permission given to the kudikidappukaran to occupy a but shall not be deemed to be a lease of the building for the purpose of the clause, there is no claim or issue to be decided by the Land Tribunal as to whether the defendants are kudikidappukars.
4. It was then that defendants moved for amending the written statement by insetting the following contentions. (1) The but was put up by them (2) They are residing in the but (3) They have no other land or homestead and (4) They are kudikidappukars.
5. Though the first contention that the but was put up by them was found against by the Land Tribunal, that aspect need not stand in the way of allowing the amendment. Trial court alone is bound by that finding and has to incorporate the same in the judgment and dispose of the suit accordingly. That finding could be challenged in appeal as if it were a finding of the trial court and the appellate court can go into the correctness of that finding as if that is a finding of the trial court and even reverse the same. In such a contingency absence of pleading should not stand in the way of the defendants. The decision of the Land Tribunal need not therefore deter the court in allowing that amendment also if it is otherwise found allowable.
6. The trial court seems to have gene under the wrong impression that 0.6 R.17 is intended only to enable the plaintiff to amend the plaint and the corresponding prevision enabling the defendants to alter, amend or add to his contentions is by filing an additional written statement under 0.8 R.9 with the leave of the court. That may be the reason why the court said that no provision of law allows the defendants to amend his written statement and his remedy is only to apply for leave of the court and file an additional written statement. The wording in 0.6 R.17 is "allow either party to alter or amend his pleadings". The wording is not 'plaintiff, but 'either party'. That means plaintiff or defendant. They are the only parties to the suit though for some other purposes others may also be deemed to be parties. So also the word used is not plaint but pleadings. 0.6 R.1 makes it clear that pleading shall mean plaint or written state
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