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2020 Supreme(Ker) 779
IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
Chandran S/o Meleparambil Velappan – Petitioner
Versus
Ramachandran S/o Munveettil Narayanan – Respondent
O.P. (C) No. 1343 of 2019
Decided On : 13-11-2020
Advocate Appeared:
For the Petitioners: Sri. T.M. Chandran, Sri. S. Sujith.
For the Respondent: Sri. K.G. Balasubramanian.
IMPORTANT POINTS:
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.
Headnote:
Code of Civil Procedure, 1908- Order VI Rule 17;; The Code of Civil Procedure (Amendment) Act, 2002 - The High Court has fixed a time limit for the disposal of a case, by itself, is not a sufficient ground to reject the applications filed by the parties, without considering the merits- The proviso to Order VI Rule 17 of the Code is not applicable to cases which were pending and filed before the amendment came into effect
Statement of facts:
Granting a decree for recovery of possession of property. It is the second round of litigation in the trial court. The suit was earlier decreed in part by the trial court. The second appeal filed before this Court by the first defendant was disposed of by remanding the suit to the trial court with a direction to identify the extent of the property owned by the plaintiff which is alleged to be in the possession of the defendants by issuing a new commission with the assistance of a surveyor. This Court also directed the trial court to dispose of the suit within a period of four months from the date of receipt of a copy of the judgment in the second appeal.
Finding of the court:
Exts.P2 and P4 orders warrant interference by this Court for the reason that the trial court failed to consider the merits of Exts.P1 and P3 applications-The application for amendment of the plaint is allowed by the trial court, it shall grant sufficient opportunity to the defendants to file additional written statement.
Result: Original petition is allowed
JUDGMENT :
R. NARAYANA PISHARADI, J.
1. The plaintiff in the suit is an octogenarian now. The first defendant is now a septuagenarian. The suit is of the year 1995. Still, there is no sign of attaining finality to the litigation.
2. One of the reliefs prayed for in the suit is granting a decree for recovery of possession of property. It is the second round of litigation in the trial court. The suit was earlier decreed in part by the trial court. The second appeal filed before this Court by the first defendant was disposed of by remanding the suit to the trial court with a direction to identify the extent of the property owned by the plaintiff which is alleged to be in the possession of the defendants by issuing a new commission with the assistance of a surveyor. This Court also directed the trial court to dispose of the suit within a period of four months from the date of receipt of a copy of the judgment in the second appeal.
3. After the remand of the suit, the commissioner measured the properties with the assistance of a surveyor and filed report and plan. Thereafter, the plaintiff filed an application as I.A. No. 1678/2019 (Ext.P1) in the trial court under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short ‘the Code’) for amendment of the plaint. The prayer in that application was for amendment of the description of the property given in the B schedule of the plaint, which is sought to be recovered from the possession of the defendants, in accordance with the report and plan filed by the commissioner.
4. The plaintiff also filed another application as I.A. No. 1679/2019 (Ext.P3) in the trial court with a prayer to remit the report of the commissioner.
5. As per Ext.P2 order dated 11.04.2019, the trial court dismissed Ext.P1 application. On the same day, as per Ext.P4 order, the trial court also dismissed Ext.P3 application.
6. The plaintiff has filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Exts.P2 and P4 orders.
7. Heard learned counsel for the petitioner and also the first respondent.
8. The operative portion of Ext.P2 reads as follows:
“Hon'ble High Court remanded the case with specific direction that this court shall expedite the disposal of the suit within a time schedule of four months from the date of receipt of a copy of the judgment. The judgment was received on 15-1-2019. The vacation starts and the court closes for vacation on 12-4-2019. This application is filed on 10-4-2019. The commissioner filed report on 12-3-2019. Plaintiff did not file application for amendment till the last moment. The application is highly belated. More than amendment based on report of commissioner, another amendment as regards boundary is also sought.”
9. The operative portion of Ext.P4 order reads as follows:
“The advocate commissioner filed report with plan on 12-3-2019. This application is filed on 10-4-2019. Hon'ble High Court remanded this case ordering that this court shall expedite the disposal of the suit within a time schedule of four months from the date of receipt of a copy of the judgment. The judgment was received on 15-1-2019. The court closes for vacation on 12-4-2019. This application is filed on 10-4-2019. Petitioner did not file this application till the last moment. The surveyor was examined on 21-3-2019 itself. This application is highly belated.”
10. The trial court has dismissed Exts.P1 and P3 applications solely on the ground of the delay in filing them.
11. An application for amendment of the plaint can be entertained and allowed by the court at any stage of the proceedings subject to the provision contained in the proviso to Order VI Rule 17 of the Code. The proviso appended to Order VI Rule 17 of the Code was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force with effect from 01.07.2002. It states that, no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the c
