KADISUMMA AND OTHERS Vs. ABDULRAHIMAN AND ANOTHER

JUDGEMENT

(1.) THIS Revision Petition seeks to revise the order made by the learned Munsiff of Hosdrug on July 25, 1958 dismissing R.I.A. No. 526 of 1958 in O.S. No. 45 of 1958 on the file of his court. R.I.A. No. 526 of 1958 was an application to amend the written statement filed in the suit and the learned Munsiff rejected the application. The defendants have therefore brought this revision. The suit was to redeem a kaivasom panayam and it was instituted before the court of the Munsiff at Taliparamba on 29 -9 -1955. The defendants filed their written statement on 3 -4 -1956 and in it they contended that of the two items comprised in the plaint schedule they had obtained full title to item 1 and that they were willing to submit to the redemption of item 2 on receipt of the proportionate mortgage money (which they sought to fix at Rs. 1,200) and the value of improvements. The kaivasom panayam was for a consideration of Rs. 1,400. The suit was later transferred to the file of the Munsiff's Court of Hosdrug and there some time after the plaintiff was examined as a witness on his side the defendants filed R.I.A. No. 526 of 1958 on 23 -6 -1958 to amend their written statement. The amendment sought to challenge the right of the plaintiff to redeem item 2 inasmuch as according to them even though the document sued upon was styled a kaivasom panayam it was really a kanom and therefore irredeemable. Reliance was sought to be placed on a notification of the Government of Madras dated 25 -8 -4954 under Section 54 of the Malabar Tenancy Act, but as pointed out by the learned Munsiff that notification applied to South Kanara District and not to North Malabar where the plaint schedule properties were situate. Section 22 of the Malabar Tenancy Act as amended on 19 -3 -1954, however, enabled the defendants to contend and prove that notwithstanding any appellation given to a document it was really a kanom. The amendment of the Act was more than two years before the defendants filed their written statement and yet in that written statement they admitted their liability to be redeemed. The amendment of the written statement sought for however denied the plaintiff's right to redeem and the learned Munsiff thought that it was not proper to permit the defendants to substitute a plea of denial of liability in place of one of admission. For that and the further reasons (i) that the application was belated, (ii) that the circumstances, if any, sought to be depended upon were available even while the original written statement was filed and (iii) that no valid explanation was given for the omission to take the plea of denial in the original written statement, the learned Munsiff dismissed the application for amendment. In the decision reported in, 1955 K.L.T. 460 reference is made to some cases where the plea of admission of liability to be redeemed has been allowed to be altered into one of denial. The learned Munsiff's view that a plea inconsistent with one taken in an earlier written statement cannot be allowed to be altered by an amendment does not therefore appear to be correct. All the same his other reasons for rejection hold good and even clause (c) of Section 115, Civil Procedure Code, cannot be invoked to interfere with his order.

(2.) FURTHER I am also not satisfied that the application for amendment is a bona fide one. Moosan Kutty, the person who executed the kaivasom panayam was given the plaint schedule properties by way of maintenance arrangement and to my mind the plea that a document executed by him would amount to a kanom is sought to be raised only for the purpose of protracting the litigation by availing of the provision in section 4 of the Kerala Stay of Eviction Proceedings Act of 1957. Indeed, an application for the stay of the suit was filed by the defendants along with the application for amendment of the written statement. No doubt the Munsiff has not stated that the application was mala fide, but regarded being, had to the circumstance now adverted and the omission to take the present stand in the original written statement, it would appear to me that the inference I draw is irresistible. The revision fails in the result and it will stand dismissed with costs.