Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 31ST DAY OF JANUARY 2013 11TH MAGHA 193 OP(C).No. 4016 of 2012 (O) ------------------------- PETITIONER: ------------ DR.RANJIT PETER , AGED 3 YEARS S/O.PETER K.KURIYAN, KILUTHATTIL HOUSE, THENGODE KARA KAKKANAD VILLAGE, ERNAKULAM DISTRICT REPRESENTED BY HIS FATHER AND POWER OF ATTORNEY HOLDER MR.PETER K.KURIEN. BY ADVS.SRI.T.J.MICHAEL SRI.DENU JOSEPH SRI.SAJI MATHEW SMT.REMYA MOHAN RESPONDENT(S): ---------------------------- 1. N.P.MATHAI, AGED 4 YEARS NENGETH HOUSE, THENGODE P.O., KAKKANAD ERNAKULAM DISTRICT, PIN-682030.
2. C.T.GEORGE, AGED 5 YEARS S/O.THOMAS, CHALAYIL HOUSE, THENGODE P.O. KAKKANAD VILLAGE, ERNAKULAM DISTRICT, PIN-682030. -2- OP(C).No. 4016 of 2012 (O) ------------------------- 3. M.C.KRISHNAN, AGED 4 YEARS MANAPPILLY NJALIL, NEAR RUBBER KADA, MANAKKAKADVU THENGODE P.O., KAKKANAD-682030.
4. PAVOODAN ELIAS, AGED 5 YEARS S/O.KUNJU, PAVOODATH HOUSE, THENGODE P.O. KAKKANAD-682030.
5. OUSEPH, AGED 4 YEARS S/O.KUNJAPPAN, POLLAKKATTIL, THENGODE P.O. KAKKANAD-682030.
6. KRISHNAN, AGED 6 YEARS S/O.VELAYUDHAN, MANJERIL HOUSE, THENGODE P.O. KAKKANAD-682030. R1 & R3 BY ADV. SRI.P.K.RAVISANKAR THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 31-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: N.K.BALAKRISHNAN, J.
................................................................. O.P. (Civil) No. 4016 of 2012 .................................................................... Dated:
31. 01-2013 JUDGMENT This petition under Article 227 of the Constitution of India has been filed by the plaintiff represented by his father who is his power-of -attorney. The suit O.S. 395/07 was filed by him for a permanent prohibitory injunction against the defendants therein from trespassing into or committing waste in the plaint schedule property and also from creating obstruction to the plaintiff's beneficial enjoyment of the plaint schedule property. The defendants who filed the written statement contended that the plaintiff has no right over the plaint schedule property or to get a prohibitory injunction as sought for. It was also contended that without seeking a declaration of title, the plaintiff is not entitled to get any relief in a mere suit for injunction since the plaint schedule property is actually a O.P. (Civil) No. 4016 of 2012 -:2:- government puramboku land held by the school authorities.
2. Based on the written statement filed by the defendants, an issue was framed as to whether the suit was properly valued and requisite court fee was paid. Another issue as to whether the plaintiff has title to the plaint schedule property was also framed. The trial Court held that the plaintiff has to pay court fee under Sec. 27 (a) of the Kerala Court Fees and Suits Valuation Act, 1959 (for short "the Court Fees Act"), after properly valuing the suit property. But that order was challenged by the plaintiff before the High Court in Writ Petition ( C) 4780/2009. This Court set aside the earlier order and trial Court was directed to pass appropriate orders on the issue of valuation for which the plaintiff had filed an application to delete the 2nd issue relating to the title to the property. The court below dismissed the application and again directed the plaintiff to pay court fee under Sec. 27 (a) of the Court Fees Act. After paying the court fee, the suit was O.P. (Civil) No. 4016 of 2012 -:3:- proceeded further. It was put in the specialist for trial to 20-02-2010.
3. Three witnesses were examined and Exts. A1 to A41 were marked on the side of the plaintiff and the first defendant was examined as DW1 and Exts.B1 to B6 were marked. The evidence was closed on 27-2-2010 and the case was posted for hearing to 1-3-2010. On that day, the plaintiff filed an application as I.A. 1869/2010 seeking permission of the Court to withdraw the suit with liberty to file fresh suit. That application was opposed by the defendants contending that though the plaintiff can withdraw the suit, no liberty to file a fresh suit can be given for so many reasons stated in the counter statement filed by them.
4. The court below, however, allowed that application. That was challenged before this Court in W.P. (C) 11573 of 2010. This Court as per Ext. P5 order allowed the petition filed by the defendants and the O.P. (Civil) No. 4016 of 2012 -:4:- order passed by the trial court allowing the application to withdraw the suit with liberty to file fresh suit was set aside and the matter was remanded to the trial court for fresh consideration.
5. It is stated by the court below that the plaintiff and defendants 1 to 4 and 6 entered appearance on 29-09- 2012. Notice was ordered to be issued to D5. The case underwent several adjournments. Notice on the 5th defendant was served before 31-10-2012. On 31-10-2012 D5 was recorded as absent (in the application mentioned above) and hence again the case was adjourned to 12-11- 2012. On that day also 5th defendant was absent. Again the petition seeking permission of the Court to withdraw the suit with liberty to file fresh suit was adjourned to 16-11- 2012. That petition was heard and it was posted for orders on 17-11-2012. It was at that time I.A. 5836/2012 was filed to amend the application (I.A. 1869/2010) which was filed seeking withdrawal of the suit with liberty O.P. (Civil) No. 4016 of 2012 -:5:- to file fresh suit . That amendment application which was filed at the belated stage was dismissed by the learned Munsiff. It is that order which is challenged in this Writ Petition filed under Article 227 of the Constitution.
6. The learned counsel for the petitioner submits that the court below happened to dismiss the petition solely for the reason that in Ext.P5 order which was passed by this Court it was not stated that the plaintiff can file application for amendment. The learned counsel further submits that since Ext.P5 order will show that this is an open remand nothing prevented the trial Court from allowing the application to amend the petition. Hence according to the learned counsel for the petitioner, the application seeking withdrawal of the suit should have to be allowed by the trial court and for that purpose the application for amendment of that petition should have been allowed since in the application which was filed originally, sufficient grounds were not stated to justify the invocation of the O.P. (Civil) No. 4016 of 2012 -:6:- power to allow the plaintiff to withdraw the suit with liberty to file fresh suit. But this submission is strongly resisted by the learned counsel for the defendant pointing out that a perusal of Ext.P5 order will make it clear as to the dilatory tactics adopted by the plaintiff throughout. It is also submitted that the plaintiff did not choose to amend the plaint or to seek appropriate relief at the appropriate time . After having fought the suit up to the last stage, the plaintiff cannot seek withdrawal of the suit to file a fresh suit only to enable him to have a second round of litigation to the detriment of the defendants who had to spend time, money and energy for the conduct of the case for several years. The suit was filed in the year 2007. Five years have elapsed. Defendants had no personal interest in the litigation. But they have filed the written statement pointing out that the plaintiff has no title and that the property is actually a government puramboke land held by the school authorities and as such the defendants who O.P. (Civil) No. 4016 of 2012 -:7:- have no personal interest had to undergo the ordeal of trial for a pretty long time and again the plaintiff wanted to file petitions after petition only to see that the defendants are put to untold hardships and to see that the case is dragged on for decades together. It is contended that the sole idea of the plaintiff is to see that a fresh suit is filed after getting permission of the court and to see that the second suit also is prosecuted for years together.
7. It is also submitted that it was the consistent stand taken by the defendants at the very inception that the plaintiff is not having title to the property and as such the plaintiff is not entitled to the injunction sought for. It was not something which was subsequently discovered so as to contend that the plaintiff was unaware of the position at the time of filing the suit or at a later stage. There was also no difficulty for the plaintiff to seek amendment of the plaint at the earliest stage within the time allowed by the Code or at any rate after seeking permission of the Court to O.P. (Civil) No. 4016 of 2012 -:8:- get the pleadings amended. That was not done. Even at the first round of litigation when the plaintiff moved this Court, after the trial Court directed him to pay court fee under Sec. 27 (a), he did not file any application to seek amendment of the plaint to incorporate sufficient pleadings, if actually, the plaintiff thought that to sustain an action on title pleading was not sufficient. That was not done. It is further argued that the plaintiff wanted to have the suit decided even without paying the court fee and without impleading the Government or other authorities who are actually having tile or interest in the property. When the definite stand taken by the plaintiff is that the property belonged to the Government, it was the bounden duty of the plaintiff to find whether there is merit in that contention.
8. Petition was filed after about three years of the suit, that too after the closure of the trial, i.e. after the evidence of the plaintiff and defendants was recorded and the case was posted for argument. It is further submitted O.P. (Civil) No. 4016 of 2012 -:9:- that it was because of those circumstances, that the earlier order passed by the learned Munsiff allowing withdrawal of the suit with liberty to file suit, was set aside by this Court as per Ext. P8 and directed the trial Court to dispose of the application considering the entire matter before it. It was submitted by the learned counsel, before this Court that the application filed by him is bereft of all the requirements as provided under Rule 1 (3) of Order 23 of the Code. It was already found that it is not a case where the application is to be allowed on the alleged ground of having a formal defect in the frame of the suit. The plaintiff now contends that the application seeking withdrawal of the suit with liberty to file fresh suit is also found to be lacking in pleadings. That is also not a new thing. When the matter was pending before this Court in Ext.P8 proceedings, there was no difficulty for the plaintiff to file the application or at least to make a submission before this Court that the plaintiff be given opportunity to O.P. (Civil) No. 4016 of 2012 -:10:- seek amendment of the application so as to incorporate sufficient grounds for withdrawal of the petition. The plaintiff wanted to contend that in the original plaint, sufficient pleadings for deciding the question of title were not mentioned by him and so he seeks withdrawal of the suit. That contention has been strongly resisted by the learned counsel for the defendants. The object of Order XXIII Rule 1 (3) of the Code of Civil Procedure (C.P.C. for short) is not to enable the plaintiff, after he has failed to establish his case, by adducing requisite evidence, to have a further opportunity to file afresh suit to re-agitate the matter so as to prejudice the other side. If such a thing is permitted, there will be no end to litigation. In fact Sub rule (3) is not intended to permit the plaintiff to withdraw one suit and institute another suit as he likes. If an application for withdrawal of the suit with liberty to file fresh suit is allowed, the position would be that the proceedings taken in the earlier suit cannot be relied upon O.P. (Civil) No. 4016 of 2012 -:11:- at all and the parties would be in the position as if there was no earlier suit at all. That would be actually causing serious prejudice to the defendants in the peculiar nature of the suit, the learned counsel for the defendants submits.
9. It is in that background this Court has held that the Court should apply the mind to the facts of the case and the ground pleaded seeking liberty to file fresh suit with proper care and caution so as to ensure strict compliance with the grounds prescribed in Order XXIII Rule 1 (3) of C.P.C. It is not disputed that the formal defect contemplated under Rule 1 (3) (a) of Order XXIII means such defects which are unconnected with the merits and would necessarily lead to the failure of the suit. In fact, there is no case that the suit has to fail because of such formal defect. The main ground that has been projected by the plaintiff is that there was no sufficient pleading in the plaint so as to sustain the action on title and for that purpose the plaintiff has to be permitted to seek O.P. (Civil) No. 4016 of 2012 -:12:- withdrawal with liberty to file fresh suit.
10. As observed in Ext.P8 order itself there was no difficulty for the plaintiff at the earliest stage to seek amendment of the plaint that too when a specific issue on title was raised and also when the defendants contended that the plaintiff has to pay court fee under Sec. 27 (a) of the Court fees Act. At that point of time, the plaintiff contended that he was not bound to pay the Court fee under Sec. 27 (a) and there was no necessity of an issue of title being raised at all. The conduct of the plaintiff itself would be unravel the mischievous design behind the suit having been filed without impleading the Government and other functionaries and also without seeking adjudication of title to the property, the learned counsel for the defendant submits. Whatever that be, the contention that because in the petition already filed seeking withdrawal of the Court, sufficient pleadings have not been mentioned for withdrawal of the petition and so the petition may have to O.P. (Civil) No. 4016 of 2012 -:13:- be allowed, also cannot be accepted for a moment, the learned counsel for the defendant submits. The attempt made by the plaintiff is to seek such pleadings as if this petition is a plaint. What are the grounds on which the plaintiff wanted to sustain his action on title cannot be introduced in this petition seeking withdrawal of the suit with liberty to file fresh suit.
11. It is true that the order passed by this Court does not preclude the plaintiff from seeking amendment of the petition, but at the same time, on a reading of the entire judgment, it can be found that the plaintiff did not approach the court with clean hands but wanted the suit to be withdrawn after the entire evidence was over and only when the case was posted for argument putting the defendants in a disadvantageous position. Adopting such a course would cause serious prejudice to the defendants. It was held by this Court in Ext.P8 judgment : "In the instant case, the lack of sufficient pleadings to O.P. (Civil) No. 4016 of 2012 -:14:- substantiate title is the main ground projected in the application for withdrawal. Certainly, a feeling of lack of pleadings of the plaintiff, after evaluating the evidence adduced by the defendants, at the fag end of the trial is a matter connected with merits of the case and it cannot be a formal defect contemplated under Order XXIII Rule 1 (3) (a). Then the question is whether the lack of pleadings can be a 'sufficient ground' contemplated under Rule 1 (3)(b) of Order XXIII I am of the opinion that it depends upon the bonafides of the alleged lack of pleadings and circumstance under which the lack of pleadings comes to the notice of the plaintiff. It is to be borne in mind that lack of pleadings and evidence are commonly matters which are not at fault of the defendants. So, certainly a permission to unnecessarily drag on the defendants to another round of litigation would cause gross injustice and hardship to him. If the lack of pleadings is one inherent in the plaint itself and was continuing unmindfully despite due application of mind thereon, at the fag end, it cannot be taken as a sufficient ground under clause (b) of Sub rule (3) because plaintiff could have resorted to remedies under Order VI Rule 17 to cure the defects in pleadings by means of amendments. The object of Order VI Rule 17 is to give an opportunity to determine real question in controversy and to prevent multiplicity of suits". The defendants would contend that if the lack of pleadings was brought to the notice of the plaintiff consequent to a subsequent event which may have fundamental impact over the matter in issue, happened at a later stage of the suit and in view of such subsequent factors disclosed in the course of the trial, it did appear that the real question in O.P. (Civil) No. 4016 of 2012 -:15:- controversy can be determined only by a fresh suit, then certainly grant of liberty to file a fresh suit may be justifiable. But in this case, it was not something which was disclosed during the course of the trial but the consistent stand taken by the defendants from the very inception was that the plaintiff was not having title to the property and it was only a Government land which should have certainly made the plaintiff alert so as to seek amendment of the plaint and also to implead the Government as a party to the suit. The contention that the suit could not be filed against the Government without a notice under Sec. 80 of C.P.C. and so it was not possible to implead the defendant also may not be a ground to sustain petition since there was no difficulty to send a notice under Sec. 80 C.P.C. and to seek relief against the Government. Even otherwise, if as a matter of fact the plaintiff wanted to file a fresh suit, that could have been had long back. There was no necessity of directing the O.P. (Civil) No. 4016 of 2012 -:16:- defendants to fight against the plaintiff for years together. It is also of mention that even after Ext. P8 judgment, when the petition was directed to be considered afresh, the case underwent several adjournments. It was held by this Court in Ext. P8 judgment: "To sum up, the grant of liberty to file a fresh suit for the same cause of action can never be an incentive, attached with the withdrawal for encouraging the withdrawal of suit, so as to reduce pendency in statistics. It is to be borne in mind that for those who involved in litigation, it would result in wastage of time, cost of money and sufferings".
12. The learned counsel for the defendants would submit that after the amendment to the Code the power of the Court to allow amendment also has been circumscribed unless the petitions are filed within the time prescribed. Though the court may have jurisdiction to allow such petitions in exceptional circumstances, this is not a case where such exceptional circumstances have arisen. It is only a case where the plaintiff was filing petitions after petition only to put the defendants to hardships and O.P. (Civil) No. 4016 of 2012 -:17:- inconveniences.
13. The main contention that was advanced by the plaintiff before this Court is that there was no necessity for inviting a decision on title when the defendants do not set up title in themselves in respect of the disputed property. The question is not whether the defendants themselves set up title in them but the question is whether the plaintiff is entitled to get a decree for injunction in respect of a government puramboke land. It is contended by the defendants that the documents produced by them would show that the property in question is a Government Puramboke land. Since that was the case set up by the defendants at the very inception and since the plaintiff wanted to proceed with the suit totally disregarding the contention raised by the defendants and unmindful of the consequence, the plaintiff cannot at the fag end of the litigation contend that such averments should be permitted to be incorporated in the application seeking withdrawal of O.P. (Civil) No. 4016 of 2012 -:18:- the suit. If the plaintiff is allowed to file such petitions at the belated stage would cause serious prejudice to the defendants. As such, I find no merit in this petition, it is only to be dismissed. In the result, this petition is dismissed. Dated this the 31st day of January, 2013. Sd/- N.K.BALAKRISHNAN, JUDGE ani/ /truecopy/ P.S. toJudge