Ravi, vs Kochammini,

RAVI, vs Kochammini,

Type Court Judgment Court Kerala Decided Jul 30, 2019

~5 min read

https://sooperkanoon.com/case/1887880

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/1887880
Court: Kerala High Court
Judge: Honourable Mr. Justice Sunil Thomas
Decided On: Jul 30, 2019
Case Number: OP(C)/1007/2019

Parties & Advocates

Appellant / Petitioner

RAVI,

Respondent

Kochammini,

Excerpt

.....of the trial, petitioners herein filed i.a.no.836/2019 for amendment of the written statement to incorporate a pleading to the effect that the first defendant had constructed the house with his own funds. stating that in spite of due diligence this fact was failed to be omitted to be included in the written statement, amendment was sought. this was rejected by ext.p5 order, which is impugned in this original petition.2. according to the learned counsel for the petitioners, it wasdue to an inadvertent omission that the above pleading was not incorporated. this happened since a joint written statement was filed by the petitioners. hence, the specific pleading in relation to the first defendant was omitted to be incorporated. o.p.(c) no.1007/2019 43. countering the above argument, learned counsel for the respondents contended that, in fact, on an earlier occasion, thewritten statement was amended and the pleading of the second defendant in relation to the building stated to have been constructed by his was incorporated. even at that time, the contention of the first defendant was not raised leading to a conclusion that there was nothing which interfered in seeking amendment at that time and the bar under order 6 rule 17 of cpc will apply.4. it is true that application was highly belated. it is also truethat on an earlier occasion amendment was sought in relation to an identical contention of two other defendants. even at that stage, this plea was not raised. however, it seems that, essentially petitioners are relying on a will stated to have been executed by mani. male children are stated to have bequeathed the right to the property by virtue of that will. this is a matter under consideration. though i am fully satisfied that, there was gross negligence on the part of the petitioners, still in the interest of justice, i feel that petitioners can be given one more last opportunity to carry out the amendment. consequently, i am inclined to set aside the impugned order.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 30TH DAY OF JULY 2019 / 8TH SRAVANA, 1941 OP(C).No.1007 of 2019 AGAINST THE ORDER IN IA NO.836/2019 IN OS 2942/2013 of ADDITIONAL MUNSIFF COURT ,IRINJALAKUDA PETITIONER/S: 1 RAVI, AGED 64 YEARS S/O.MANAKATTUPADI MANI, NENMANIKARA VILLAGE, 2 RESH, AGED 50 YEARS S/O.MANAKATTUPADI MANI, NENMANIKARA VILLAGE, 3 VANISHA, AGED 42 YEARS 4 RUDRAKSH, AGED 17, MINOR, REP. BY MOTHER AND GUARDIAN VANISHA, AGED 42, 5 RISHITHA, AGED 12, MINOR, REP. BY MOTHER AND GUARDIAN, VANISHA, AGED 42, BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT/S: 1 KOCHAMMINI, AGED 68 YEARS D/O.MANAKATTUPADI MANI, NENMANIKARA VILLAGE, O.P.(C) No.1007/2019 2
TALUK, THRISSUR, W/O.KALAPURAYIL SHANMUGHAN, URAKAM VILLAGE, ETTUMANA DESOM, THRISSUR-680301. 2 SOBHA, AGED 63 YEARS D/O.MANAKATTUPADI MANI, NENMANIKARA VILLAGE, TALUK, THRISSUR-680301 AND W/O.CHETTIYATTIL PAVITHRAN, PULLUT VILLAGE DESOM, KODUNGALLUR TALUK. 3 SARADA, AGED 70 YEARS W/O.KONNOLI VEETIL SANKUNNI INCHAMUDI DESOM, CHIRAKKAL VILLAGE, CHIRAKKAL P.O., THRISSUR-680564. 4 PUSHPA, AGED 60 YEARS W/O. LATE KUNNATHULLIVEETIL RAVI, OTTUPARA DESOM, VADAKKANCHERY, OTTUPARA P.O., THRISSUR DISTRICT- 680582. 5 SANTHI, AGED 58 YEARS W/O.KUDAPULLI PARAMAN ENCLAVE, POORNA HILL VIEW, CHANDRANAGAR COLONY, PALAKKAD -678007. BY ADV. SRI.V.M.KRISHNAKUMAR
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O.P.(C) No.1007/2019 3

JUDGMENT

Petitioners herein are the defendants Nos.1,2,7,8 and 9 in O.S.No.2942/2013 which is a suit for partition. The parties are the children and grand children of Mani and Karthyayani. Claiming partition, two daughters of Mani filed the suit for partition. It was preceded by notice which was replied by the contesting respondents. Mani and Karthyayani had three male children, among whom Rajesh had died. Legal heirs were brought on record. On the basis of the written statement filed, issues were framed and the parties proceeded for trial. After commencement of the trial, petitioners herein filed I.A.No.836/2019 for amendment of the written statement to incorporate a pleading to the effect that the first defendant had constructed the house with his own funds. Stating that in spite of due diligence this fact was failed to be omitted to be included in the written statement, amendment was sought. This was rejected by Ext.P5 order, which is impugned in this original petition.

2. According to the learned counsel for the petitioners, it was

due to an inadvertent omission that the above pleading was not incorporated. This happened since a joint written statement was filed by the petitioners. Hence, the specific pleading in relation to the first defendant was omitted to be incorporated. O.P.(C) No.1007/2019 4

3. Countering the above argument, learned counsel for the respondents contended that, in fact, on an earlier occasion, the

written statement was amended and the pleading of the second defendant in relation to the building stated to have been constructed by his was incorporated. Even at that time, the contention of the first defendant was not raised leading to a conclusion that there was nothing which interfered in seeking amendment at that time and the bar under Order 6 Rule 17 of CPC will apply.

4. It is true that application was highly belated. It is also true

that on an earlier occasion amendment was sought in relation to an identical contention of two other defendants. Even at that stage, this plea was not raised. However, it seems that, essentially petitioners are relying on a Will stated to have been executed by Mani. Male children are stated to have bequeathed the right to the property by virtue of that Will. This is a matter under consideration. Though I am fully satisfied that, there was gross negligence on the part of the petitioners, still in the interest of justice, I feel that petitioners can be given one more last opportunity to carry out the amendment. Consequently, I am inclined to set aside the impugned order and to allow the IA.

5. It is made clear that no further opportunity will be granted to the petitioners to make any further pleading in the written statement. The court below shall try to include the matter in the next available

O.P.(C) No.1007/2019 5 list and proceed with the trial, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. Sd/- SUNIL THOMAS dpk JUDGE O.P.(C) No.1007/2019 6

APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O S NO.2942 OF 2013 ON THE FILE OF THE ADDL. MUNSIFF COURT, IRINJALAKUDA DATED 21.8.2013. EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1,7,8 AND 9 DATED 27.11.2014 IN EXT. P1 SUIT. EXHIBIT P3 A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT IN EXT. P1 SUIT FILED BY THE DEFENDANTS 1 TO 3, 7, 8 AND 9 DATED 8.10.2018. EXHIBIT P4 A TRUE COPY OF THE I.A.NO.836 OF 2019 FILED IN EXT.P1 SUIT DATED 20.2.2019. EXHIBIT P5 A TRUE COPY OF THE ORDER PASSED BY THE ADDL. MUNSIFF COURT, IRINJALAKUDA IN IA NO.836 OF 2019 IN O S NO.2942 OF 2013 DATED 13.3.2019.

Same Court & Year Kerala · 2019 Same Parties RAVI, vs Kochammini, Same Judge Honourable Mr. Justice Sunil Thomas