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2024 Supreme(Online)(KER) 27196
HIGH COURT OF KERALA
Kauser Edappagath, J
D.L.VENKIDESWARA BHAT – Appellant
Versus
REMA – Respondent
OP(C) 233/2024
DINESH R.SHENOY, P.ROHIT PREMANANDAN SHENOY, SILESH S. PRABHU, PHILIP T.VARGHESE, ACHU SUBHA ABRAHAM, V.T.LITHA, K.R.MONISHA
The court has the discretion to allow an application for amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure, even if the application is filed after the institution of the suit, if the reasons for the delay are well explained and the proposed amendments are necessary for the just and effective adjudication of the dispute.
Headnote:
Civil Procedure - Order 6 Rule 17 - Amendment of Plaint
Fact of the Case:
The petitioner, who is the plaintiff in O.S. No. 868 of 2015, filed an application under Order 6 Rule 17 of the Code of Civil Procedure to amend the plaint to incorporate prayers for the fixation of the southern boundary of the plaint schedule property and for a mandatory injunction to demolish the construction allegedly made by the defendant encroaching into the plaint schedule property. The trial court dismissed the application, and the petitioner has challenged the dismissal order in this original petition.
Finding of the Court:
The court set aside the trial court's order dismissing the application for amendment of the plaint and allowed the application. The court held that the reasons for the delay in filing the amendment application have been well explained, and the prayers for the fixation of the boundary and the demolition of the alleged encroachment are necessary and cannot be said to be unnecessary.
Issues: Whether the trial court was justified in dismissing the application for amendment of the plaint filed by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure.
Ratio Decidendi: The court held that since the defendant allegedly constructed a wall encroaching into the plaint schedule property after the institution of the suit, it is necessary to seek the demolition of the same by way of mandatory injunction. The prayer for the fixation of the boundary also cannot be said to be unnecessary. The reasons for the delay in filing the amendment application have been well explained, and the embargo under the proviso to Order 6 Rule 17 of the Code of Civil Procedure is not attracted.
Final Decision: The court set aside the trial court's order dismissing the application for amendment of the plaint and allowed the application. The trial court shall give an opportunity to the defendant to file an additional written statement and thereafter proceed with the suit in accordance with law.
This original petition has been filed challenging Ext.P7 order dismissing an application filed under Order 6 Rule 17 of the Code of Civil Procedure to amend the plaint.
2. The petitioner is the plaintiff and the respondent is the defendant in O.S.No.868 of 2015 on the files of the Munsiff Court, North Paravur (for short 'the trial court'). The suit is one for injunction simplicitor. A Commissioner was appointed initially. The Commissioner filed report and plan. The Commissioner reported that on the southern boundary of the plaint schedule property, a new boundary wall was constructed at the length of 14.8 meter. According to the plaintiff, it was constructed by the defendant encroaching into the plaint schedule property. Hence, the petitioner filed Ext.P5 application to amend the plaint, to incorporate the prayers for the fixation of southern boundary of the plaint schedule property and also for a mandatory injunction to demolish the construction allegedly made by the defendant encroaching into the plaint schedule property.
The defendant filed Ext.P6 objection. The trial court, after hearing both sides, dismissed Ext.P5 mainly on two grounds:-(a) the application was belated, and (b) the reasons stated in the affidavit were not sufficient to allow the application.
3. In the affidavit filed in support of Ext.P5 application, the plaintiff pleaded that after the institution of the suit, the defendant encroached into the plaint schedule property and constructed a compound wall. It is further alleged that though he intimated the said fact to his counsel, the counsel told him that after the inspection of the commissioner, the plaint could be amended. It is also alleged that thereafter due to the outbreak of Covid-19, the case was not called in the court, but adjourned by notification. It is also evident from the record that, counsel for the plaintiff thereafter passed away, and the plaintiff has engaged another counsel. It was the new counsel who filed the application for amendment of the plaint. Therefore, the reason for the delay in filing the amendment application has been well explained.
Hence, it is not a case where embargo under the proviso to Order 6 Rule 17 of the Code of Civil Procedure is attracted. Since, according to the plaintiff, the defendant constructed a wall encroaching into the plaint schedule property after the institution of the suit, it is necessary OP(C) NO. 233 OF 2024 to seek demolition of the same by way of mandatory injunction. The prayer fixation of boundary also cannot be said to be unnecessary.
Hence, I am of the view that the trial court was not justified in dismissing Ext.P5 application. Accordingly, the impugned order, Ext.P7, is set aside and Ext.P5 stands allowed. The trial court shall give an opportunity to the defendant to file an additional written statement and thereafter proceed with the suit in accordance with law.
The original petition is allowed as above.
