Kerala High Court · 2012

OP(C) NO. 3860/20115. PULLOORMANNAMEETHAL AMRITHAVALLY, AGED 42 YEARS, D/O. LATE GOVINDANKUTTY NAIR KUTTIKKATTOOR VILLAGE, PAINGOTTUPURAM DESOM KOZHIKODE TALUK.6. KAMALAM, D/O. SUBADRA BRAHMINI AMMA, THOTTATHAZHATH MEETHAL HOUSE, VENGERI AMSOM DESOM KOZHIKODE TALUK.7. KRISHNADASAN NAMBEESAN, THOTTATHAZHATH MEETHAL HOUSE, VENGERI AMSOM DESOM KOZHIKODE TALUK.8. KUPPERI SABEENA, W/O. N.P.GAFOOR, KUPPERI NEDOOLIL, KUTTIKATOOR AMSOM PALKOTTUPURAM DESOM, KOZHIKODE. BY ADV. SRI.T.SETHUMADHAVAN BY ADV. SRI.PUSHPARAJAN KODOTH BY ADV. SRI.K.JAYESH MOHANKUMAR THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13-08-2012, THE COURTON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 3860/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT-P1.A TRUE COPY OF THE PLAINT IN OS NO.182/2005 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-II, KOZHIKODE.EXHIBIT-P1(a).A TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE IMPLEADING APPLICATION IA 365/2011.EXHIBIT-P2.A TRUE COPY OF THE WRITTEN STATEMENT OF D3 TO D5 IN OS NO.182 OF 2005 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-II, KOZHIKODE.EXHIBIT-P3.A TRUE COPY OF THE DECREE DATED 10.12.1986 PASSED BY THE MUNSIFF'S COURT, KOZHIKODE II IN OS NO.565 OF 1985.EXHIBIT-P4.A TRUE COPY OF THE DRAFT OFFICE COPY OF THE WRITTEN STATEMENT OF D3 TO D5 IN OS NO.182 OF 2005 ON THE FILES OF PRINCIPAL MUNSIFF'S COUT-II, KOZHIKODE AS MAINTAINED IN THE OFFICE OF THE COUNSEL FOR THE PETITIONERS.EXHIBIT-P5.A TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA NO.3522 OF 2011 APPLICATION FOR AMENDMENT OF THE WRITTEN STATEMENT FOR INCORPORATING THE CORRECT SCHEDULE.EXHIBIT-P6.A TRUE COPY OF THE COUTER/OBJECTION DATED 6.9.2011 IN IA NO.3522 OF 2011 IN OS NO.182/2005 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-II,KOZHIKODE.EXHIBIT-P7.A TRUE COPY OF THE ORDER DATED 27.9.2011 IN IA NO.3522 OF 2011, APPLICATION FOR AMENDMENT OF THE WRITTEN STATEMENT IN OS NO.182 OF 2005 PASSED BY THE PRINCIPAL MUNSIFF'S COURT-II, KOZHIKODE.EXHIBIT-P8.A TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE APPLICATION IA 4683 OF 2011 FOR RE-OPENING OF EVIDENCE OF DEFENDANTS IN OS NO.182/2005 ON THE FILES OF PRINCIPAL MUNSIFF'S COURT-II, KOZHIKODE.EXHIBIT-P9A TRUE COPY OF THE COMMON JUDGMENT IN O.S. NO. 789 OF 1983 AND O.S. NO. 565 OF 1985 DATED 10.12.1986 PASSED BY THE PRINCIPAL MUNSIFF'S COURT-II KOZHIKODE DATED 10.12.1986. RESPONDENTS' EXHIBITS : NIL/TRUE COPY/P.A. TO JUDGE. V. CHITAMBARESH, J--------------------------------OP(C) NO. 3860 OF 2011------------------------------------Dated this the 13th day of August, 2012JUDGMENTDefendants 3 and 4 had earlier filed O.S. Nos. 789/1983and 565/1985 on the file of the court of the Munsiff IIKozhikode. O.S. No. 789/1983 was for an injunction and O.S.No. 565/1985 was for a declaration that the decree in O.S. No.490/1978 of the same court as affirmed in appeal and secondappeal was not valid and binding on them and the plaintschedule property therein. The suits were decreed and thesame have become final and the present plaintiffs in O.S. No.182/2005 are not parties therein.2.The suit in O.S. No. 182/2005 on the file of thecourt of the Munsiff II Kozhikode is for an injunctionrestraining the first defendant from executing any documentin respect of the plaint 'C' schedule property. The plaint 'C'schedule property of extent 41 cents is said to be part of plaint'A' schedule property of extent 52 cents after deducting 11cents assigned away and shown as the plaint 'B' scheduleproperty. Defendants 3 and 4 have filed a written statement 2OP(C) No. 3860/2011staking exclusive right over portions of the property covered bythe decree in O.S. Nos. 789/1983 and 565/1985. The jointwritten statement filed by defendants 3, 4 and 5 did contain aschedule wherein a mistake is alleged to have crept in. This wassought to be corrected by an application for amendment whichhas been dismissed by the court below by the order impugned.3.It may at once be noticed that defendants 3, 4 and 5have not raised any counter claim in O.S. No. 182/2005. Therewas therefore no necessity to incorporate a separate schedule ofproperty in their written statement. The body of the writtenstatement already contains a plea as regards the reliance placedon the decree in O.S. Nos. 789/1983 and 565/1985. It is on thebasis of the decree in those suits that defendants 3, 4 and 5 arestaking an exclusive right. The plaintiff in O.S. No. 182/2005however maintains that he is not a party therein and is notbound by the decrees.4.Defendants 3, 4 and 5 contend that a mistake crept inthe schedule of their written statement while copying the decreein O.S. Nos. 789/1983 and 565/1985. The mistake was 3OP(C) No. 3860/2011committed by the clerk of the Advocate and the draft copymaintained with the Advocate contains the correct schedule.The affidavit accompanying the application for amendmentsatisfies the conditions laid down in the proviso to Order VI Rule17 of the Code of Civil Procedure. Defendants 3 and 4maintained that this mistake could not be noticed earlier (sincethe office copy had the correct schedule) notwithstanding theexercise of due diligence. I am therefore inclined to allow theapplication for amendment of the schedule of the writtenstatement filed by defendants 3, 4 and 5.5.There is however some laches on the part ofdefendants 3, 4 and 5 in not taking steps earlier to correct theschedule of the written statement. This delay can becompensated by directing them to pay costs to the plaintiffs. Theapplication for amendment of the written statement will standallowed on condition that the petitioners/defendants 3, 4 and 5pay a sum of ` 15,000/- (Rupees Fifteen thousand only) as coststo the counsel for the plaintiffs in this Original Petition within aperiod of three weeks. The order impugned will remain intact in 4OP(C) No. 3860/2011case the petitioners omit to pay the costs as directed.6.The court below is also at liberty to dispose of I.A. No.4683/2011 in O.S. No. 182/2005 on the file of the court of theMunsiff II, Kozhikode in accordance with law.The Original Petition is disposed of as above.V. CHITAMBARESH JUDGEncd