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2025 Supreme(Online)(Ker) 12385
2024 KER 23001
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C. JAYACHANDRAN, J.
M/s. Safa Mill Stores, Represented By Its Managing Partner Mohammed Jassim, S/o. Muhammed Iqbal and Anr. – Petitioners
Versus
Shabana K.A., W/o. Firoz T.M. and Ors. – Respondents
OP(C) No. 1512 Of 2023
Decided On : 19-03-2024
Advocates Appeared :
For the Petitioners : Dinesh Mathew J. Muricken, Vinod S. Pillai, Mohammed Thayib N.M., Nayana Varghese, Ahammad Sachin K., Ria Varghese.
For the Respondents : Dinesh R. Shenoy, Jayadeep Menon K.V., T.P. Ramesh (Thengumpillil), P. Krishnapriya, P. Rohit Premanandan Shenoy, Silesh S. Prabhu, Jomol Pius, Aiswarya.
DINESH MATHEW, J. MURICKEN, VINOD S. PILLAI, MOHAMMED THAYIB N.M., NAYANA VARGHESE, AHAMMAD SACHIN K., RIA VARGHESE, DINESH R. SHENOY, JAYADEEP MENON, K.V., T.P. RAMESH (THENGUMPILLIL)(K/248/2000), P. KRISHNAPRIYA(K/479/2006), P. ROHIT PREMANANDAN SHENOY(K/000195/2017), SILESH S. PRABHU(K/510/2020), JOMOL PIUS(K/002269/2022), AISWARYA(K/2147/2022)
Amendments to claim petitions under Order 21, Rule 99 are subject to the same principles as pleadings, and the dismissal of such amendments is justified if filed after significant witness examination.
Headnote:
(A) Code of Civil Procedure, 1908 - Order 6, Rule 17 - Order 21, Rule 99 - Amendment of claim petition - Dismissal of amendment application upheld as the petitioners are strangers to the suit and the amendment sought was substantial, filed post-examination of witnesses - The court emphasized that the principles of amendment apply to claim petitions akin to suits. (Paras 3, 6, 7)
(B) Amendment - The court clarified that the amendment of pleadings is governed by Order 6, Rule 17, which applies to all proceedings before a Civil Court, including claim petitions under Order 21, Rule 99. (Paras 6, 7)
Facts of the case:
The petitioners sought to amend their claim petition to extend the claim from two cents to 55.5 cents, which was dismissed by the court, citing the petitioners' status as strangers to the original suit and the timing of the amendment.
Findings of Court:
The court found no merit in the petitioners' arguments and upheld the dismissal of the amendment application, noting that the amendment was sought after significant witness examination.
Issues: The main issues were whether the amendment application could be allowed under the provisions applicable to claim petitions and the implications of the petitioners' status as strangers to the suit.
Ratio Decidendi: The court ruled that the principles governing amendments apply to claim petitions, and the dismissal of the amendment application was justified given the circumstances and timing.
Result: Original Petition dismissed.
ORDER :
(C. JAYACHANDRAN, J.)
The petitioners herein are the claim petitioners in Ext.P7 claim petition. The petitioners are aggrieved by Ext.P12 order, which dismissed the application for amendment of the claim petition.
2. Heard the learned counsel for the petitioners and respondents.
3. Learned counsel for the petitioners would submit that the amendment sought for vide Ext.P10 was dismissed only harping on the proviso to Order 6, Rule 17, which will not apply to a claim petition filed under Order 21, Rule 99. Learned counsel would submit that Order 6, Rule 17 deals with amendment of ‘pleadings’ and pleadings are defined in Order 6, Rule 1 to mean plaint or written statement only. In the instant case, Ext.P7 is a claim petition under Order 21, Rule 99. Therefore, the same cannot be brought within the ambit of ‘pleadings’ as defined in Order 6, Rule 1. The second submission is based on the definition to Section 2(2) of the Code, wherein that part of the definition of the decree, which includes Section 47 , has been omitted by the Amendment Act of the year 1976, wherefore a proceeding under and an order passed therein, will not amount to a decree. In this regard, learned counsel would rely on the judgment of a learned Single Judge of this Court in Ellodimalayil Pockan v. Koyiloth Moosa and others [ 2019 (3) KHC 298 ]. The impact of deletion of Sub Section 2 of is seen discussed therein, in paragraph no.11. Therefore, it is the submission of the learned counsel that determination of any question within the scope of of the Code cannot be regarded as a decree, no longer. As regards the amendment of a petition made at the execution stage, learned counsel relied on another decision of the learned Single Judge in Raveendran v. Dandayudan [ 1987 KHC 365 ] to contend that, even if Order 6, Rule 17, may not apply in terms, amendment can be sought for under Section 151. On such premise, learned counsel would submit that the dismissal of the amendment application vide Ext.P12, relying on the proviso to Order 6, Rule 17 cannot be sustained.
4. In answer to the above contentions, learned counsel for the respondents would first point out that the instant claim petition is filed under Order 21, Rule 99 and also under Section 47 . Referring to , learned counsel would submit that the said provision is not applicable, inasmuch as, the petitioners herein is not a party to the suit, but a stranger. If Ext.P7 application is to be treated under Order 21, Rule 99, learned counsel would point out that, by virtue of Rule 101, a separate suit is barred and that all questions between the parties to the proceeding and relevant to the adjudication of the application shall be determined by the Court dealing with the application. Learned counsel would submit that an anticipatory obstruction before physical dispossession can also be filed under Order 21, Rule 99. Going by Order 21, Rule 103, the order to be passed in an application under Order 21, Rule 99, or for that matter Rule 98 or 100, is a deemed decree for the purpose of appeal or otherwise. Relying on the judgment of this Court by a learned Single Judge in Ayyappan Pillai v. Raveendranathan [ 1999 KHC 128 ], learned counsel would submit that the procedure envisaged in Order 21, Rule 101, is virtually a substitute for a suit, as held in paragraph no.9 in that decision. Learned counsel then invited the attention of this Court to Section 141 of the Code to point out that the procedure in the Code has to be followed in regard to all proceeding in any Court of Civil jurisdiction. Proceedings under Order 21, Rule 99, being a proceeding before a Court of Civil jurisdiction, the procedure contemplated in the Code has to be followed. Therefore, Order 6, Rule 17 will apply, is the submission made by the counsel.
5. On facts, learned counsel would point out that the extent of land over which a claim was made in Ext.P7 claim petition was only two cents, whereas, the claim is sought to be extended to 5
