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2021 Supreme(Online)(KER) 24382
HIGH COURT OF KERALA
T.I.ABDUL SALAM, J, SUNIL CYRIAC, J, S.C, MEENACHIL CO-OP., J, P.C. ANIL KUMAR, J, P.S.APPU, J, A.C.DEVASIA, J, FIROZ K.ROBIN, J, A.HAROON RASHEED, J, T.R.HARI KRISHNAN, J, J.JULIAN XAVIER, J, H.KIRAN, J, K.R.MONISHA, J, A.R.NIMOD PHILIP, J, T.VARGHESE, J, T.K.RADHAKRISHNAN, J, REJI GEORGE, J, SHAJI THOMAS, J, T.C.SURESH MENON, J, P.H.SHAJAHAN, J
RUKKIYA BEEVI – Appellant
Versus
ABDUL LATHEEF, – Respondent
OP(C)/396/2017
T.I.ABDUL SALAM SRI.SUNIL CYRIAC,SC,MEENACHIL CO-OP.ARD SRI.P.C.ANIL KUMAR, SC, KSFE LTD.P.S.APPU A.C.DEVASIA FIROZ K.ROBIN A.HAROON RASHEED T.R.HARI KRISHNAN J.JULIAN XAVIER H.KIRAN K.R.MONISHA A.R.NIMOD PHILIP T.VARGHESE T.K.RADHAKRISHNAN REJI GEORGE SHAJI THOMAS T.C.SURESH MENON P.H.SHAJAHAN
Amendments to pleadings should be allowed liberally unless proven to be mala fide or fundamentally altering the lawsuit.
Headnote:
Amendment - Partition Suit - Order VI Rule 17 - The court emphasized a liberal approach to amendments in pleadings, focusing on justice and effective adjudication rather than mere procedural delays.
Fact of the Case:
The petitioner filed a suit for partition, seeking to amend the plaint to introduce 38 changes. The application was dismissed by the trial court, citing potential delays and significant changes to the suit's nature.
Finding of the Court:
The court found that many proposed amendments were cosmetic and did not fundamentally alter the suit's character. The trial court failed to properly assess the amendment's relevance to the case's adjudication.
Issues: Whether the trial court erred in dismissing the application for amendment of the plaint based on potential inconvenience and alterations to the suit's nature.
Ratio Decidendi: The court highlighted the necessity of applying a liberal approach in considering amendments, stressing that they should only be dismissed in instances of mala fides or if they fundamentally alter the case.
Final Decision: The Original Petition is allowed, and the trial court is directed to reconsider the amendment application.
JUDGMENT
The petitioner is the plaintiff in O.S.No.150 of 2013 on the files of the Subordinate Judge's Court, Pala. The suit is filed for partition and separate possession of plaint item Nos.1 to 21 belonging to late Sayed Mohammed Rawther, the predecessor-in- interest of the petitioner and respondents 1 to 9. The other respondents are persons in whose favour certain items of properties were alienated by some of the sharers. The challenge in this original petition is against Ext.P8 order, dismissing the petitioner's application for amending the plaint. The reason for dismissal, as discernible from the order, is that the amendment, if allowed, will protract the litigation causing inconvenience to the defendants and to the court. The other reason being that a large number of documents are sought to be produced by the plaintiff and 38 items of changes sought to be made to the pleadings and reliefs, thereby bringing about sweeping changes to the nature of the suit.
2. Learned Senior Counsel appearing for the petitioner submitted that the impugned order goes against the settled law that applications seeking permission to amendment the pleadings are to be construed liberally. It is contended that, rather than being carried away by the number of items of amendments, the trial court ought to have focused on the question whether the amendment was imperative for the just and proper disposal of the suit. According to the learned Senior Counsel, the changes are only cosmetic and does not alter the nature of the suit in any manner.
3. Learned Counsel appearing for the respondents supported the impugned order by contending that the attempt of the petitioner is to withdraw the admissions in her plaint and to bring in new contentions and reliefs. It is submitted that the amendments are not as innocuous as is attempted to be made out. Moreover, the application for amendment is moved at a belated stage and if allowed, will cause substantial prejudice to the defendants.
4. I find substance in the contention of the learned Senior Counsel that even though 38 items of amendments is sought to be made, majority of them are either cosmetic or, at best, clarificatory in nature. Further, other than accepting the contention of the defendants that the amendment will alter the character of the suit, there is no finding in the impugned order as to how the nature and character of the suit will be altered. As has been repeatedly held by the Apex Court, courts should adopt a liberal approach and normally, amendment applications should not be dismissed unless the amendments are found to be mala fide, worthless and / or dishonest. Further, the decision on an application made under Order VI Rule 17 should never be undertaken in a casual manner. InRavajeetu Builders and Developers v Narayana Swamy and Sons and others [2009 (10) SCC 84 ]) , the Apex Court has succinctly laid down the factors to be taken into consideration while dealing with applications for amendments. The relevant portion of the judgment is extracted here under;
“63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order
