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Saibinnisha, Kollam v/s Abdul Vahab, Kollam & Others


    OP (FC). No. 352 of 2018 (I.A. No. 1210 of 2018 in O.P. No. 688 of 2016)

    Decided On, 18 July 2018

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE C.K. ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

    For the Petitioner: G.P. Shinod, G. Ram Mohan, Govind Padmanaabhan, Ajit G. Anjarlekar, Advocates. For the Respondents: R1-R4, Liju.V. Stephen, Indu Susan Jacob, Advocates.



Judgment Text

R. Narayana Pisharadi, J.

1. This Original Petition is filed under Article 227 of the Constitution of India challenging Ext.P3 order passed by the Family Court, Kottarakkara in the application filed as I.A.No.1210/2018 in O.P.No.688/2016.

2. The petitioner has filed O.P.No.688/2016 in the Family Court seeking a decree of declaration that she is the absolute title holder of the petition A and B schedule properties. She has also sought a decree of prohibitory injunction restraining the respondents from forcibly evicting her and her minor son from the petition C schedule property and the house therein. The respondents herein are the respondents in O.P.No.688/2016. The first respondent is the husband of the petitioner. The second respondent is the brother and the third and the fourth respondents are the parents of the first respondent.

3. At a stage when the case was posted for evidence, the petitioner filed the application I.A.No.1210/2018 for amendment of the petition. The amendment sought related only to the petition C schedule property. The averment in the original petition O.P.No.688/2016 is that the petition C schedule property having an extent of 15 cents was given to the share of the first respondent from his family and that the house in that property was constructed using the funds of the petitioner and her parents. By the proposed amendment, the petitioner sought to substitute the averment that the petition C schedule property was given to the share of the first respondent from his family with averment to the effect that the aforesaid property was orally gifted to her and the first respondent by the third and the fourth respondents on 12.03.2003. The petitioner also sought amendment of the relief portion of the petition seeking also a declaration that she and the first respondent have got ownership and possession over the petition C schedule property.

4. The respondents filed objection to the application for amendment denying the plea of oral gift of petition C schedule property by the third and the fourth respondents in favour of the first respondent. The respondents also contended that the petitioner has got no right over the petition C schedule property.

5. As per Ext.P3 order dated 08.06.2018, the Family Court dismissed the application for amendment. The Family Court has given the following reasons for dismissing the application for amendment of the original petition filed before it by the petitioner. They are :(1) The plea of oral gift of the petition C schedule property sought to be raised by the petitioner is inconsistent with the plea already raised by the petitioner that it is a property set apart to the share of the first respondent from his family (2) This Court has found in O.P.(FC) No.637/2016 that the petitioner has got no right in respect of the petition C schedule property as a shared household (3) In the application filed by the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the Judicial First Class Magistrate's Court, Punalur, that court has entered a finding that the house in the petition C schedule property is not a shared household (4) The application for amendment was moved by the petitioner just at the time of commencement of the evidence in the case (5) On 13.12.2017, this Court had directed the Family Court to finally dispose of the case within six months.

6. We have heard Sri.Govind Padmanabhan, learned counsel for the petitioner and also Sri.Liju V. Stephen, learned counsel for the respondents.

7. Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') reads as follows:

"17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

8. The aforesaid rule declares that the court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial has commenced, unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter for which the amendment is sought before the commencement of the trial of the case.

9. The petition C schedule property comprises 15 cents of land and a residential building therein. The averment in the original petition filed before the Family Court is that this property was set apart to the share of the first respondent from his family and thereafter, the house was constructed in it using the funds of the petitioner and her parents. The petitioner now seeks an amendment to the effect that the petition C schedule property was orally gifted to her and to the first respondent by the parents of the first respondent on 12.03.2003. By way of amendment, the petitioner also seeks the relief of a decree of declaration that she and the first respondent have got title and possession over the petition C schedule property.

10. The real controversy test is the basic or cardinal test in deciding whether the amendment is to be allowed or refused. It is the primary duty of the court to decide whether the amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court. While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment. Merits of the plea sought to be incorporated by way of amendment are not to be adjudged at the stage of considering the merits of the prayer for amendment (See Rajesh Kumar Aggarwal v. K.K.Modi : AIR 2006 SC 1647).

11. All amendments of pleadings should be allowed which are necessary for determination of the real controversies in the suit. But, the proposed amendment shall not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause prejudice to the opposite party. The dominant purpose of allowing the amendment is to minimise the litigation. When prayer for amendment of pleadings is made, not a hyper-technical approach but a liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs (See B.K.N.Pillai v. P.Pillai : AIR 2000 SC 614).

12. In the instant case, considering the nature of the amendments sought by the petitioner, we are of the view that though a new plea is sought to be raised by her regarding the manner in which she and the first respondent acquired right and possession over the petition C schedule property, it cannot be found that the plea sought to be raised is totally inconsistent with the plea already raised by her. It is to be noted that she has already made sufficient pleadings to the effect that she has got right and possession over the house in that property. The basic structure of the original petition filed by her in the court below is not altered by the proposed amendment. We are not convinced that the proposed amendment will have the effect of withdrawing any admission made by the petitioner.

13. True, the petitioner has sought only a decree of prohibitory injunction in respect of the petition C schedule property. By the proposed amendment, she seeks a decree of declaration of ownership and possession over that property. It is settled law that if necessary factual basis for amendment is already contained in the plaint, the relief newly sought on the said basis would not change the nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of the suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties (See Abdul Rehman v. Mohd.Ruldu : (2012) 11 SCC 341).

14. In the instant case, the original petition filed by the petitioner before the Family Court already contains factual basis for seeking a decree of declaration of title of the petitioner and the first respondent over the petition C schedule property. The original petition already contains averment that the aforesaid property belongs to the first respondent and that the petitioner is in possession of the house in that property and that the house was constructed by using the funds of the petitioner and her parents. The nature of the original petition filed by the petitioner before the Family Court will not be changed by the proposed amendment.

15. The petitioner filed the application for amendment when the original petition was posted for taking evidence. The proviso to Order 6 Rule 17 of the Code states that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. The trial is deemed to commence when the issues are settled and the case is set down for recording of evidence (See Vidyabai v. Padmalatha : AIR 2009 SC 1433). The entire object of the amendment to Order 6 Rule 17 of the Code as introduced in 2002 is to stall filing of application for amendment of pleadings subsequent to the commencement of trial and to avoid surprises to the opposite party. It also helps to check the delay in filing the applications. No application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. The term "due diligence" determines the scope of a party's constructive knowledge. Exercise of due diligence is a requirement which cannot be dispensed with (See Samuel v. Gattu Mahesh : (2012) 2 SCC 300). If the parties to the proceedings are able to satisfy the Court that inspite of due diligence they could not raise the issue before commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial (See Rajkumar Gurawara v. M/s S.K.Sarwagi and Company: AIR 2008 SC 2303). Mere delay in making an application for amendment, by itself, is not sufficient to refuse amendment. The power of the court is wide enough to permit amendment even in cases where there has been substantial delay in filing the amendment application. If the facts of the case so permits, it is always open to the court to allow application inspite of the delay and laches in moving the application for amendment (See Pankaja v. Yellappa : AIR 2004 SC 4102).

16. Learned counsel for the petitioner has contended that the petitioner had no knowledge of the documents executed by the parents of her husband in respect of the petition C schedule property when it was given by them to enable her and the first respondent to construct a house therein. It is contended that it is only when the third and the fourth respondents denied her right in the petition C schedule property that the petitioner came to know about the real nature of the documents executed by them. In this connection it is to be noted that it was when the petitioner and the first respondent were on cordial terms that the aforesaid property was allegedly set apart to the share of the first respondent by his parents for the purpose of constructing a house. At that time, the petitioner would not have made a deeper probe as to her right over that property and the nature of the documents executed by the parents of her husband in respect of that property. In these circumstances, we are satisfied that inspite of due diligence the petitioner could not have raised the claim over the petition C schedule property before the settlement of issues in the case. At any rate, the proposed amendment is necessary to decide the real dispute between the parties and to minimise litigation.

17. It is to be noted that the respondents have not raised any plea that the decree of declaration of title over petition C schedule property sought by the petitioner would be barred by limitation. Even if they have got such a plea, they can raise it when they file additional written statement after the amendment of the original petition.

18. The petitioner had filed an application for temporary injunction to restrain the respondents from forcibly evicting her and her minor son from the house in the petition C schedule property. The aforesaid application was allowed by the Family Court. The third and the fourth respondents challenged the aforesaid order in O.P (FC) No.637 of 2016 filed before this Court. This Court found that the petitioner has got no right over the house in that property. The finding made by this Court in O.P (FC) No.637 of 2016 regarding the right of the petitioner over the petition C schedule property or the house therein will not preclude her from claiming right over that property by amendment of pleadings. In Arjun Singh v. Mohindra Kumar : AIR 1964 SC 993, the Apex Court has held as follows:

'It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceeding before the court usually take. They do not in that sense decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the Court would be justified in rejecting the same as an abuse of the process of Court'.

Therefore, it is a settled position of law that findings made in the interlocutory applications like application for temporary injunction will not operate as res judicata in deciding the issues at the stage of the final disposal of a suit. 19. Likewise, the order, if any, passed by the Magistrate's Court in an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 regarding the right of the petitioner over the house in the petition C schedule property also does not preclude or prevent the petitioner from raising right over that house in the proceedings in the nature of a suit.

20. It is stated that this Court had directed the Family Court to dispose of the case within a period of six months from the date 13.12.2017. But, the Family Court will not be justified in dismissing applications filed by the parties on the ground that delay would be caused in the trial of the case by allowing such applications. In this context, the following observations made by the Supreme Court in Bablu Kumar v. State of Bihar : (2015) 8 SCC 787 are very much relevant. The Supreme Court has observed thus:

'Because at one point of time, the High Court had directed for finalisation of trial within a fixed duration and the learned Trial Judge, in all possibility, harboured the impression that even if the prosecution witnesses had not been served the notice to depose in Court, and the prosecution had not taken any affirmative steps to make them available for adducing evidence in Court, yet he must conclude the trial by the target date as if it is a mechanical and routine act. The learned Trial Judge, as it appears to us, has totally forgotten that he could have asked for extension of time from the High Court'.

True, the aforesaid observations were made by the Supreme Court in the context of disposal of a criminal case. But, the observations made by the Apex Court are equally applicable to cases of civil nature. The mere fact that the High Court has fixed a time limit for the disposal of a case does not mean that the lower court shall dispose of the case in a mechanical way. The lower court shall make every endeavour to dispose of the case within the time frame fixed by the High Court. If, for any reason, the lower court finds it unable or impossible to dispose of the case within the time limit fixed by the High Court, the

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proper procedure is to address the High Court for extension of time for disposing the case. The fact that the High Court has fixed a time limit for the disposal of a case, by itself, is not a sufficient ground to reject the applications filed by the parties for the reason that allowing the applications would cause delay in the disposal of the case. 21. It is to be noticed that the respondents filed objection to the application for amendment only denying the truth of the averments sought to be incorporated by the petitioner by amendment of pleadings. As noticed earlier, while considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. If the facts alleged by the petitioner are not correct it is open to the respondents to take such plea in the written statement. If the petitioner fails in substantiating the factual averments or the respondents succeed in substantiating their pleas which would be permitted to be raised by them by filing additional written statement, the reliefs prayed for by the petitioner would be ultimately declined. Examination of witnesses is yet to commence in the case. Therefore, the respondents are in no way prejudiced by allowing the prayer for amendment of pleadings of the petitioner. In these circumstances, we find it unable to agree with the court below that the application for amendment of the original petition filed by the petitioner merits rejection. 22. Consequently, we allow this Original Petition and set aside Ext.P3 order passed by the Family Court. We allow the application filed as I.A.No.1210/2018 by the petitioner in O.P.No.688/2016 in the Family Court, Kottarakkara. The Family Court shall permit the petitioner to carry out the amendment and the respondents shall be permitted to file additional written statement and the case shall be disposed of in accordance with law. No costs.
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