S. SETHUNATH Vs. R. MOHANKUMAR

JUDGEMENT

(1.) THE petitioner calls in question Ext.P4 order of the Principal Sub Court, Thiruvananthapuram whereby the court below dismissed Ext.P1 amendment application. The facts absolutely necessary for the purpose of disposal of this original petition are as follows:

(2.) O .S. No. 244/1989 was a suit for partition instituted by the 1st respondent herein claiming a share over the suit property. The 1st defendant filed a written statement wherein she disputed the share available to the plaintiffs. During the pendency of the suit, the 1st defendant died and her legal heirs were brought on the party array as defendants 4 to 6. After trial, preliminary decree was passed in which the plaintiffs were given 1/4th share of the property. Two sets of appeals were filed before this Court by the aggrieved defendants. A.S. No. 864/1998 was filed by defendants 1 and 3 to 6 and A.S. No. 47/1998 was filed by the 2nd defendant. The appeals were disposed of by a common judgment dated 28.05.2010. By the said judgment, the finding of the trial court that plaintiffs are entitled to 1/4th share was confirmed and this Court found that there are no grounds to interfere with the said finding. Since there was an inter se dispute between the parties regarding the share, this Court remanded the case with the following observation:

(3.) SRI . T. Krishnanunni, learned Senior Counsel appearing for the petitioner contended that final decree proceedings are still pending and there is no justification as to why the amendment sought for should have been declined. It is trite, according to the learned Senior Counsel, that any number of preliminary decrees could be passed before final decree is passed. Viewed from that angle, there is no justification for the court below to decline the relief. A document which is crucial in this regard was omitted to be noticed and that caused mistake and proper contentions were not taken in the written statement. Learned Senior Counsel went on to point out that merely because of an omission, justice may not be denied to the petitioner.