Amendment Not Necessary For Adjudication Of Real Issue In Controversy Between Parties To Suit Must Not Be Allowed: Kerala HC
The Kerala High Court has observed that an amendment to suit which is not necessary for the adjudication of the real issue in controversy between the parties must not be allowed.
The Court was dealing with a petition filed by a person (petitioner) against the order of the Principal Munsiff Court, Neyyattinkara allowing an amendment sought by three persons (respondents).
A Single Bench of Justice C. Jayachandran held, “… an amendment, seeking to incorporate facts pertaining to the title of the plaintiff, is not going to serve any useful purpose. It cannot be said that such averments are required for the adjudication of the real issue in controversy by and between the parties, having regard to the scope of the reliefs sought for in the suit. In such circumstances, the amendment sought for ought not to have been allowed. Moreover, the amendment sought for is belated as well.”
Advocate S. Nikhil Sankar appeared for the petitioner while Advocates Biju Balakrishnan, V.S. Rakhee, and K.J. Gisha appeared for the respondents.
In this case, the counsel for the petitioner submitted that the amendment sought for by the respondents was allowed by a cryptic order, merely stating that the Court was satisfied that the amendment was necessary and that an application for amendment can be filed at any stage. It was pointed out that the application for amendment was filed after filing the proof affidavit, thus after commencement of the trial. It was further argued that the matters which are sought to be incorporated by amendment are not at all required for adjudication of the suit. The respondents were the owners of the property adjacent to the plaint schedule property and the pleadings, which were sought to be incorporated, pertains to the title of the plaint schedule property, which was not so far challenged before any forum as against the petitioner/plaintiff.
The title of the plaintiff was not an issue to be adjudicated in a suit for fixation of boundary and therefore, the amendment application ought to have been dismissed, was the submission of the counsel. On the other hand, the counsel for the respondents submitted that the petitioner got the property in connection with his marriage, pursuant to a deed executed by the second respondent, wherein the mother-in-law had paid the consideration. It was pointed out that the marriage of the petitioner with the younger sister (third respondent) of the second respondent was already separated by virtue of a decree of divorce, and therefore, the petitioner had no right surviving in the property, which he obtained in connection with the marriage. It was also pointed out that the plaint schedule property was attached by the Family Court as per the orders.
The High Court in view of the facts and circumstances of the case observed, “Having heard the learned counsel appearing on both sides, this Court is inclined to allow this Original Petition. As rightly pointed out by the learned counsel for the petitioner, the suit is only for fixation of boundary, as also, for an injunction from trespass. Admittedly, the respondents/defendants herein are the owners of the property, which lies on immediate northern side of the plaint schedule property.”
The Court said that the title of the plaintiff over the plaint schedule property has not so far been challenged by the respondents, or for that matter by anybody else, before any forum, nor has the respondents preferred any counter claim in that regard.
Accordingly, the High Court allowed the original petition and dismissed the impugned order.
Cause Title- Santhosh Kumar P.M v. John M.T and Ors. (Neutral Citation: 2023:KER:70785)