PURAKKADI DEVASWOM Vs. GOVERNMENT OF KERALA

JUDGEMENT

(1.) The petitioner herein is the petitioner in O.A. No. 194/81 on the files of the Forest Tribunal, Kozhikode, as well as the petitioner in L.A. No. 9/10 filed therein. The above Original Application was filed for a declaration that the plaint schedule property is not a private forest and thereafter not vested in the State under Section 3(1) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, (for short 'the Act'). The Forest Tribunal had partly allowed the application finding that plot No. P1 shown in Ext. C1 report measuring 23.36 Hectares and plot No. S in Ext. C2 measuring 0.8 Hectares are not private forests. Aggrieved by the Award of the Tribunal, the State filed M.F.A. No. 332/86 and the petitioner filed M.F.A. No. 319/86. Initially, the appeal filed by the State was allowed and one filed by the petitioner was dismissed. The petitioner filed a Review Petition before this Court. This Court reviewed the matter and allowed both the MFAs and remanded the case to the Tribunal after setting aside the Award of the Tribunal. After the remand, the petitioner filed I.A. No. 9/10 in O.A. No. 194/81 under Order 6 Rule 17 r/w Section 151 of the Code of Civil Procedure praying for permission to amend the Original Application to include the claim for exemption under Sections 3(2) and 3(3) of the Act. The respondents filed a counter-statement resisting the amendment application. According to the respondents, the application is not maintainable, in view of the remand order passed by this Court in M.F.A. Nos. 319/86 and 332/86. Thus, the application for amendment goes beyond the scope and extent of remand. Secondly, the alternate claim sought to be incorporated by way of amendment is one barred by limitation under Section 3(2) of the Act. In short, if the petitioner is allowed to incorporate the pleadings, that would defeat the valid plea of limitation already accrued in favour of the respondents. Thirdly, the application for amendment is highly belated and stands without sufficient reasoning to condone the delay. As such, the application is not maintainable in view of the proviso under Order 6 Rule 17 of the CPC. After considering the rival contentions, the Court below dismissed the application, accepting the objection raised by the respondents. The legality and propriety of the findings under which the Court below dismissed the application are under challenge in this writ petition.

(2.) The learned counsel for the petitioner advanced arguments challenging the findings of the Court below. According to the learned counsel, the impugned order was issued on a misreading of the directions in Ext. P1 judgment of this Court. The Court below went wrong by finding that the remand was made for the sole purpose of examining whether the property is a private forest or not as defined under the Act, particularly, when this Court has not stated anywhere in Ext. P1 that the remand is a closed remand. According to the petitioner, in Ext. P1 judgment, this Court has not stated that the petitioner should never claim exemption under Sections 3(2) and 3(3) of the Act. If that be so, the petitioner is entitled to make alternate claim, after remand, by way of amendment. Similarly, the Court below has erred in considering the question of limitation in the application for amendment.

(3.) Per contra, the learned Special Government Pleader advanced arguments to justify the findings of the Court below. According to him, the Court below has correctly considered the matter in issue involved in the amendment application. In view of the scope of remand under Ext. P1 judgment, the matters sought to be incorporated would go beyond the scope and extent of enquiry specifically described in Ext. P1 judgment. It is also contended that if the amendment is allowed, that would take away the valid plea of defence under the Limitation Act, in view of Rule 3 of the Kerala Private Forests (Tribunal) Rules, 1972, which provides 60 days for claiming exemption under Sections 3(2) and 3(3) of the Act. The petitioner ought to have claimed relief under Sections 3(2) and 3(3) of the Act in the application when it was originally filed. So also, the application is not maintainable as the same is hit by the proviso to Order 6 Rule 17 of the C.P.C.