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HIGH COURT OF KERALA
P.SOMARAJAN, J
VENUGOPALAN – Appellant
Versus
VINCENT – Respondent
OP (CIVIL) 2879/2013
Amendment - Civil Procedure - Order VI Rule 17 - The court held that amendments to pleadings should be allowed unless they materially change the case, emphasizing the necessity of proper adjudication.
Fact of the Case:
The petitioner sought to amend a suit for declaration of title to include a request for permanent prohibitory injunction. The lower court rejected the application, citing the late timing and lack of evidence.
Finding of the Court:
The court found that the nature of the suit would not change significantly with the amendment and that the lower court failed to apply the principle allowing amendments for proper adjudication. Hence, it set aside the lower court's order.
Issues: Whether the lower court erred in denying the amendment request, considering it did not alter the character of the suit and was necessary for proper adjudication.
Ratio Decidendi: A suit's amendment can be allowed if the new relief sought does not change its character fundamentally. The necessity for proper adjudication is the guiding principle.
Final Decision: The original petition is allowed in part; lower court's order is set aside and remanded for proper disposal.
JUDGMENT
Aggrieved by the order dated 22.7.2013, in I.A.No.6365 of
2013 in O.S.No.1762 of 2010, of the II Additional Sub Judge, Thrissur, the petitioner/plaintiff came up with this Original Petition under Article 227 of the Constitution of India.
2. The above application was filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure for amending the suit by incorporating a prayer for a decree of permanent prohibitory injunction against committing trespass and also from committing waste in the property or obstructing the peaceful possession of the plaintiff. Earlier, the suit was filed for a declaration of title over the property only. The lower court has rejected the said application mainly on two reasons; that the amendment application is filed after the trial is over and that no evidence was adduced regarding the relief which is sought to be incorporated in the plaint by way of amendment. The relevant factor to be looked into by the lower court while entertaining an application for amendment is whether it will alter the nature and character of the suit, if the amendment is allowed. That has not been done by the lower court while disposing of the said application. Since the relief sought by way of amendment is for the grant of a decree of permanent prohibitory injunction over the very same property, which is the subject matter of the suit, wherein a prayer for declaration of title was sought, there is no scope for any change of nature and character of the suit. Of course, the application was filed in a belated stage, after the trial is over. If it is necessary for the proper adjudication of the suit as well as for the disposal of the issue between the parties, normally the Court has to allow the amendment. If there is any failure in exercise of due diligence, it is permissible for the Court to penalize the party concerned in terms of money. The said principle has not been applied by the lower court while passing the impugned order. Hence the order is liable to be set aside and I do so.
In the result, the original petition is allowed in part. The order of the lower court is set aside and the matter is remanded back to the lower court for proper disposal in accordance with law. The parties shall appear before the court below on 22.7.2017.
P. Somarajan Judge ahz/
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