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2021 Supreme(Online)(KER) 49703
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942
OP(C).No.365 OF 2015(O) AGAINST THE ORDER DATED 24-01-2015 IN I.A.NO.116 OF 2015 IN
O.S.NO.17/2012 OF SUB COURT, THIRUVALLA PETITIONERS- PETITIONERS/ADDITIONAL PLAINTIFFS 3 TO 6: 1 ALIYAMMA @ LEELAMMA, AGED 60 YEARS, D/O. JOHN, THEVARKATTILAYA PARUTHIYIL VEEDU, KURIYANNUR MURI, KOLABHAGAM P.O., KURIYANNOOR MURI, THOTTAPPUZHASSERY VILLAGE, THIRUVALLA TALUK.
2 MARIYAMMA @ SUSAN, AGED 51 YEARS, D/O. JOHN,THEVARKATTILAYA PARUTHIYIL VEEDU, KURIYANNUR MURI, KOLABHAGAM P.O., KURIYANNOOR MURI, THOTTAPPUZHASSERY VILLAGE, THIRUVALLA TALUK. 3
ACHAMMA LAWRANCE @ OMANA RAJAN, AGED 48 YEARS, D/O. JOHN,THEVARKATTILAYA PARUTHIYIL VEEDU, KURIYANNUR MURI, KOLABHAGAM P.O., KURIYANNOOR MURI, THOTTAPPUZHASSERY VILLAGE, THIRUVALLA TALUK.
SOSAMMA @ KUNJUMOL, AGED 42 YEARS, D/O. JOHN, THEVARKATTILAYA PARUTHIYIL VEEDU, KURIYANNUR MURI, KOLABHAGAM P.O., KURIYANNOOR MURI, THOTTAPPUZHASSERY VILLAGE, THIRUVALLA TALUK.
BY ADVS.SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.SANTHOSH MATHEW RESPONDENTS- RESPONDENTS 3, 6, 7, 1 & 2/DEFENDANTS 1, 6 & 7 & PLAINTIFFS 1 & 2: KUNJAMMA JOHN, D/O. JOHN, THEVARKATTILAYA PARUTHIYIL VEEDU, KOLABHAGAM P.O., KURIYANNUR MURI, THOTTAPPUZHASSERY VILLAGE, THIRUVALLA TALUK-689101.
P.J.BABU ABRAHAM, THEVARKATTILAYA PARUTHIYIL VEEDU, KURIYANNUR MURI, KOLABHAGAM P.O., THOTTAPPUZHASSERI VILLAGE, THIRUVALLA TALUK. 689101 BEENA ABRAHAM, THEVARKATTILAYA PARUTHIYIL VEEDU, KURIYANNUR MURI, KOLABHAGAM P.O., THOTTAPPUZHASSERI VILLAGE, THIRUVALLA TALUK. 689101 JOSEPH P. JOHN, S/O. JOHN, THEVARKATTILAYA PARUTHIYIL VEEDU, KOLABHAGAM P.O., KURIYANNUR MURI, THOTTAPPUZHASSERY VILLAGE, THIRUVALLA TALUK. 689101
MATHEW JOHN, S/O. JOHN, THEVARKATTILAYA PARUTHIYIL VEEDU, KOLABHAGAM P.O., KURIYANNUR MURI, THOTTAPPUZHASSERY VILLAGE, THIRUVALLA TALUK. 689101 R1-3 BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA) R4-5 BY ADV. SRI.P.ADAM AMBROSE THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-02-2021, THE COURT ON 11-02-2021 DELIVERED THE FOLLOWING:
“CR” Dated this the 11 th day of February,2021
J U D G M E N T
A short legal question that emerges for consideration in this original petition is whether an original defendant in the suit who is later transposed as plaintiff can seek leave to amend the pleadings of the original plaintiff.
2. The original plaintiffs in the suit sued for cancellation of a settlement deed executed by defendant Nos.1 to 6 in favour of seventh defendant and for partition and separate possession of their shares. The suit property originally belonged to the predecessor-in-interest of the plaintiffs and defendant Nos.1 to 6 and after his demise, it devolved on them in equal shares. The original plaintiffs are not parties to the settlement deed. The seventh defendant is the son of the sixth defendant. The original plaintiffs contended in the suit that the settlement deed is not binding on them, since they are not parties to the deed and further, the deed is vitiated by fraud and misrepresentation practised on plaintiffs and defendant Nos.2 to 5.
The main contestants in the suit are defendant
Nos.1, 6 and 7, who sought to sustain the execution of the deed.
3. During the course of the suit proceedings, defendant Nos.2 to 5, who contended that the settlement deed was vitiated by fraud and misrepresentation, sought them to be transposed as additional plaintiffs in the suit. The court below after finding that there is unity of interests between plaintiffs and defendant Nos. 2 to 5 and the contentions are identical, allowed the applicants to be transposed as additional plaintiffs 4 to 7.
4. When the suit was listed for trial, the transposed plaintiffs sought leave to amend the original plaint by deleting paragraph Nos.6 and 7 and adding new paragraphs. The contesting defendants opposed the amendment contending that the transposed plaintiffs have no right to amend the original plaint and none other than the original plaintiffs is entitled under Order VI Rule 17 of the Code of Civil Procedure,1908 (for short,'the Code') to seek leave of the court to amend their own pleadings. A few other objections were also raised canvassing dismissal of the amendment application. The court below accepting the objection, dismissed the amendment application by Ext.P4 impugned order dated 24.01.2015.
5. I heard the learned counsel for the petitioners and the respondents.
6. In the original plaint, there is a specific contention that the settlement deed is vitiated by fraud and misrepresentation practised on plaintiffs and the transposed plaintiffs who were the defendants 2 to 5 in the suit. It appears that after the transposition, the additional plaintiffs perhaps found that there was lack of necessary pleadings in the original plaint as to the particulars of fraud and misrepresentation. The leave to amend the original plaint was sought with intent to make the pleadings clear and complete. The proposed amendment does not indicate that it will in any manner contradict the original plaint allegations or bring about any inconsistency between the cases of the petitioners and the original plaintiffs. In that sense, the original plaintiffs are not affected by the proposed amendment.
7. Nonetheless a legal question arises as to whether the original plaintiff or defendant who is later transposed in the suit can seek leave to amend the pleadings of his opposite party irrespective of the authorship of the pleadings.
8. A transposed party who was formerly the plaintiff or defendant is the author only of his pleadings regardless of the change of his status in the suit. He is not competent to seek to amend the pleadings authored by any one other than him. Under Order VI of the CPC, the party who signs and verifies the pleadings or the person authorised in that behalf, is the aut
