MADHAVAN NAIR Vs. RAMACHANDRAN NAIR

JUDGEMENT

(1.) The petitioners are the plaintiffs and the respondents are the defendants in O.S. No. 54/02 on the files of the Sub Court, North Parur, as well as the petitioners in I.A. No. 139/06 filed therein. The suit was filed for declaration and prohibitory injunction. As per the relief sought for, the petitioners wanted to declare that the decree and judgment in O.S. No. 745/94 are not binding the petitioners and their predecessors. O.S. No. 745/94 is a suit for partition filed before the same Court. This suit was filed by the respondents/defendants without making the petitioners' father in the party array, knowing fully well that the property belongs to the father of the petitioners. I.A. No. 139/06 was filed under O.VI R. 17 of the Code of Civil Procedure seeking an amendment in the pleadings as well as cause of action. In the affidavit, it is stated that at the time of filing the suit, it was inadvertently and mistakenly stated in the plaint that the cause of action started on 29.10.1998, the date of death of the plaintiffs' father. Actually, the cause of action has arisen when the defendants filed final decree application and commission application and caused notices to the parties and started to proceed against the plaint schedule properties. This fact is inadvertently and mistakenly omitted in the plaint. Since the father is not a party to the suit, the decree and judgment in O.S. No. 745/94 are only to be ignored. This is also not properly stated in the plaint. Hence, sought for an order permitting the plaintiffs to substitute a fresh cause of action which arose on 15.9.1999, when the defendants instituted final decree proceedings in O.S. No. 745/94, after deleting the existing cause of action which arose on 29.10.1998. Two other amendments are also sought for. The respondents resisted the suit as well as the amendment application. In the objection to the amendment application, the respondents contended that the amendment sought for is highly belated and the same is intended to get over the bar under the Limitation Act. O.S. No. 745/94 was decreed ex parte on 29.9.1998. But, as per the original cause of action, the suit was filed after 3 years. Thus, the amendment was intended to circumvent the bar under the Limitation Act. It is also contended that the petitioners were well aware of the institution of O.S. No. 745/94 and the decree passed thereunder. The amendment application was dismissed without a speaking order and thereafter the suit was dismissed on the question of limitation. Aggrieved by the dismissal of the suit, the petitioners preferred an appeal, A.S. No. 263/06 before the Additional District Court, North Paravur. The appeal was allowed and the suit was remanded with a direction to consider the matter afresh and pass a considered order on the amendment application also.

(2.) After considering the rival contentions, the Trial Court dismissed the above amendment application on a finding that the amendment was sought for only to get over the bar of limitation and if the amendment is allowed, the right acquired by the opposite party as to the plea of the bar of limitation would be lost and as such the amendment cannot be allowed. The legality and propriety of the said order are under challenge in this Original Petition.

(3.) The learned counsel for the petitioners advanced arguments challenging the findings under which the amendment application has been dismissed. According to the learned counsel, the findings are erroneous and opposed to law. The court below failed to notice that by the amendment, no new case is being pleaded, and the amendment is intended only to clarify the actual cause of action, which was omitted inadvertently and mistakenly and also to state about the final decree proceedings initiated by the respondents. No prejudice would be caused to the respondents/defendants and would not cause them any injury, which could not be compensated with costs. The cause of action in this suit arose, when the respondents filed final decree application on 15.9.1999 and it is a continuous one. But, due to an inadvertent mistake, the cause of action is shown as on "29.10.1998", the date on which the petitioners' father expired. Thus the amendment sought for correction of an inadvertent mistake crept in the pleadings.