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IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
Nalini, W/o Late Rajendra Prasad – Appellant
Versus
Chandrika Kumari Amma, D/o Devaki Amma –Respondent
OP(C).No.833 of 2017(O)
Decided on : 12-10-2020
Constitution of India- Article 227 ;; Civil Procedure Code-Order VI Rule 17, Order XVIII Rule 17A -Production of evidence -Amendment of pleadings-Subsequent to the commencement of trial, would give surprise to the opposite party and cause delay in the trial-Once the trial commences on the known pleas, it will be very difficult for any side to reconcile. The proviso to Order VI Rule 17 of the Code intends to curtail delay and expedite trial of the case.
Statement of facts:
The suit is instituted for partition of the plaint A and B schedule properties- The plaintiffs have alleged that the maternal grandmother of Rajendra Prasad had gifted sixty cents of land out of the plaint A schedule property in his favour-The plaintiffs claim that they have got three-fourth share in the above sixty cents of property. The plaintiffs have also alleged that the paternal grandmother of Rajendra Prasad had conveyed to him fifteen cents out of the property which is described in the plaint B schedule. Therefore, the plaintiffs claim three-fourth share in the aforesaid fifteen cents of property also-First plaintiff has filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P8 order.
Finding of the court:
The trial court failed to consider whether the additional documentary evidence sought to be produced by the plaintiffs would assist the court to clarify the evidence already adduced on the issues and whether non-production of such evidence by the plaintiffs earlier was for valid and sufficient reasons-The trial court has not properly exercised its jurisdiction in dismissing Exts.P6 and P7 applications, it has become necessary to remand the matters for fresh consideration and disposal by the trial court.
Result: Original petition is allowed
JUDGMENT :
The petitioner is the first plaintiff and respondents 1 to 5 are the defendants in the suit O.S.No.129/2012 on the file of the Munsiff's Court, South Paravur. Respondents 6 and 7 are the second and the third plaintiffs in the suit.
2. The suit is instituted for partition of the plaint A and B schedule properties. According to the plaintiffs, the plaint A schedule property belonged to the maternal grandmother of the deceased Rajendra Prasad, who was the husband of the first plaintiff and the eldest son of the first and the second defendants. Defendants 3 to 5 are the brothers of Rajendra Prasad. The plaintiffs have alleged that the maternal grandmother of Rajendra Prasad had gifted sixty cents of land out of the plaint A schedule property in his favour. Therefore, the plaintiffs claim that they have got three-fourth share in the above sixty cents of property. The plaintiffs have also alleged that the paternal grandmother of Rajendra Prasad had conveyed to him fifteen cents out of the property which is described in the plaint B schedule. Therefore, the plaintiffs claim three-fourth share in the aforesaid fifteen cents of property also.
3. The plea of the defendants in the suit is that the plaint A and B schedule properties belonged to the first and the second defendants and that they have executed documents in respect of the properties in favour of the other defendants and that the plaintiffs have got no right over the properties.
4. The plaintiffs and the defendants adduced evidence in the suit. After closing the evidence in the suit, the plaintiffs filed an application as I.A.No.304/2017 (Ext.P6) under Section 151 of the Code of Civil Procedure, 1908 (for short 'the Code') to receive and admit in evidence three documents, that is, three encumbrance certificates in respect of the plaint A schedule property.
5. After closing the evidence in the suit, the plaintiffs also filed an application as I.A.No.302/2017 (Ext.P7) for amendment of the plaint. By the proposed amendment, the plaintiffs sought a decree of declaration that the settlement deeds 2023/2012, 2024/2012 and 2025/2012 of the S.R.O Chathannur executed in favour of defendants 3 to 5 and the settlement deed No.2022/2012 executed in favour of the fifth defendant are null and void.
6. As per Ext.P8 order, the trial court dismissed Exts.P6 and P7 applications. The relevant portion of Ext.P8 order passed by the trial court reads as follows:
7. The first plaintiff has filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P8 order.
8. Order VI Rule 17 of the Code provides that, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The proviso to this rule states that, no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial.
9. A close scrutiny of the proviso to Order VI Rule 17 of the Code would show that, an application for amendment of the
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