Ahamedkully v. Sub Judge — 1989 DIGILAW 152 (KER)

Judgment :- 1. The second respondent filed a suit O.S.No.603 of 1981 in the Munsiffs Court, Kozhikode II against the petitioner and others for a decree of permanent injunction restraining them from demolishing a compound wall on the northern side of the plaint schedule property, or in any way interfering with his possession of the property. The second respondent's case was that he was in possession of the property and that he was putting up a godown therein, when the defendants proclaimed their intention to obstruct the work. 2. The defendants contested the suit with the plea that the plaint schedule property was in the possession of the Muslim Education Trust consequent on an agreement to sell entered into by the second respondent, and the subsequent dealings arising therefrom. The building under construction in the property was a mosque being put up by the Muslim Education Trust and not a godown being put up by the second respondent. 3. Another suit O.S.No.154 of 1982 for specific performance of the agreement to sell this property is pending in the Sub Court, Calicut. The terms and conditions of the agreement between the parties arise for consideration and decision in that suit. 4. The second respondent's suit O.S.No.603 of 1981 had been laid without reference to the agreement to sell entered into by him, or the subsequent events. The Munsiff who tried the suit felt that the suit, being one for injunction simpliciter, could be decided without going into the controversy regarding the terms and conditions of the agreement to sell entered into by the second respondent. The only question arising for decision was about the possession of the second respondent. The other controversies could therefore be left for decision in O.S.No.154 of 1982, where they arose for consideration directly. The Munsiff therefore went into the question of possession alone, and held that the second respondent was not in possession of the property on the date of suit, and that the construction going on in the property was that of a mosque by the Muslim Education Trust. The suit was accordingly dismissed, without any decision on the questions relating to the agreement to sell. A true copy of this judgment is Ext.P1. 5. The second respondent filed an appeal, which is now pending in the Sub Court, Calicut as AS.No.150 of 1983. The suit was accordingly dismissed, without any decision on the questions relating to the agreement to sell. A true copy of this judgment is Ext.P1. 5. The second respondent filed an appeal, which is now pending in the Sub Court, Calicut as AS.No.150 of 1983. Long after the appeal was filed, the second respondent filed an application I.ANo.2074 of 1987 for amendment of the plaint, incorporating an averment to the effect that, if for any reason, the court held that the defendants were in possession of the property, the plaintiff - second respondent - was entitled to a decree for recovery of possession on the strength of his title. An alternate relief was also sought to be incorporated, on the basis of this averment, that the plaintiff - second respondent - be given a decree for recovery of possession from the defendants. It was also prayed that the second respondent may be allowed to pay the court fee required for the relief of possession under S.30 of the Kerala Court Fees and Suits Valuation Act, 1960. 6. The petitioner objected to the amendment by filing his statement of objections Ext.P4. It was his case that the second respondent had admitted the agreement to sell, and that it had been conceded on his behalf at the time of arguments, that the Munsiff need address himself only to question of possession, and that the question regarding subsisting nature of the agreement to sell and its terms was beyond the scope of the suit O.S.No.603 of 1981. It was in these circumstances that the Munsiff went only into the question of possession and left open the other questions. He therefore, prayed for a dismissal of I.A.No.2074 of 1987. 7. The Subordinate Judge did not consider I.A.No.2074 of 1987 independently. On the other hand, he posted it to be considered along with the appeal. This prompted the petitioner to file an application in December, 1988 to advance the hearing of I.A.No. 2074 of 1987 and to hear and dispose it of prior to the disposal of the appeal. This petition was not accepted by the Subordinate Judge, and the appeal was partly heard on 7-1-1989. Counsel for the second respondent argued the case in the forenoon for about two hours. It was thereafter adjourned to 21-1-1989 to suit the convenience of the second respondent's counsel who had come from Ernakulam. This petition was not accepted by the Subordinate Judge, and the appeal was partly heard on 7-1-1989. Counsel for the second respondent argued the case in the forenoon for about two hours. It was thereafter adjourned to 21-1-1989 to suit the convenience of the second respondent's counsel who had come from Ernakulam. This original petition was filed meanwhile under Art.227 of the Constitution to command the first respondent Subordinate Judge to dispose of the application I.A.No.2074 of 1987 before hearing the appeal A.S.No.150 of 1983. 8. The second respondent has filed a counter affidavit alleging that the conduct of the petitioner is wholly mala fide. I am not going into the mass of details set forth in the counter affidavit, excepting one aspect. The appeal was listed for hearing on 7-1-1989 when the second respondent's counsel Sri. T. R. Govinda Warrier argued it for about two hours from 11.30 A.M. to 1.30 P.M. The court then adjourned for lunch. Second respondent's counsel had covered almost the entire grounds and only a short further time was required to complete the arguments after lunch. However, when the court assembled after lunch, petitioner's counsel represented that the second respondent's counsel, who appeared and argued the case, had appeared for the petitioner in a civil revision petition which the second respondent had filed in this court after the disposal of O.S.No.603 of 1981 by the judgment Ext.P1. The obvious insinuation was that counsel who appeared for the appellant (second respondent herein) was disabled and disqualified from appearing for him. The second respondent's counsel, could not however recollect his having taken up any such engagement on behalf of the petitioner. The Subordinate Judge thereupon directed the court officer to check up the entire records to see whether any order in a civil revision petition of the nature mentioned had been communicated from this court. No such order was found in the records. The petitioner was thereupon directed to state the number of the case in which the second respondent's counsel was alleged to have appeared for him. Petitioner undertook to file an affidavit mentioning the number of the case and other details. The affidavit so filed is Ext.R2(a) in which he merely stated that second respondent's counsel had appeared for him in the High Court in a matter arising from the suit. Petitioner undertook to file an affidavit mentioning the number of the case and other details. The affidavit so filed is Ext.R2(a) in which he merely stated that second respondent's counsel had appeared for him in the High Court in a matter arising from the suit. But the number of the case in which he is alleged to have appeared was not mentioned. The hearing of the appeal was then adjourned to 21-1-1989. 9. Before this court, it was submitted for the second respondent that he had filed a writ petition O.P.No.5865 of 1983 after the judgment Ext.P1 to extend the interim order of injunction passed by the trial court to enure till such time as he was enabled to file appeal after getting certified copies of the judgment and the decree. In that original petition, the petitioner entered appearance through Advocate P.A. Mohammed, as seen from the judgment. Sri. T.R. Govinda Warrier had not at all appeared for him in that case. Evidently the submission made before the lower court regarding the disability of Sri. Govinda Warrier was false. 10. Petitioner's contention is that an application for amendment of the pleadings, made in an appellate court, has to be dealt'with and disposed of, before the appeal is taken up for disposal. According to him, this is mandatory, and there can be no disposal of the appeal without the application being considered and ordered in the first instance. R.18 of Order VI C.P.C. is stated to be a pointer in that regard. It is stated that the lower court has failed to observe this mandate when it ordered I.A. No.2074 of 1987 to be heard a1ongwith the appeal. R.18 requires the party who obtains an order for leave to amend, to carry out the amendment within a period of fourteen days from the date of the order, if no time is fixed for the same by the order granting leave. If the application for amendment is disposed of only along with the appeal, it will be impossible to comply with R.18, leading to denial of justice and violation of the rule. 11. Counsel for the second respondent however, refuted this contention, and reiterated the right of the appellate court to deal with an application for amendment a1ongwith the appeal itself. 12. It is now well established that there is no impediment or bar to an appellate court permitting amendment of pleadings. 11. Counsel for the second respondent however, refuted this contention, and reiterated the right of the appellate court to deal with an application for amendment a1ongwith the appeal itself. 12. It is now well established that there is no impediment or bar to an appellate court permitting amendment of pleadings. All that is necessary is that the appellate court should observe the well-known principles subject to which alone amendment of pleadings is generally granted. Naturally, one of the circumstances which will go into the consideration of this matter is the delay in making the application for amendment, and the reason why it was not sought in the trial court. (Ishwardas v. State of Madhya Pradesh, AIR 1979 S.C. 551): When the application for leave 19 amend the pleadings is made before the appellate court, by the appellant, the position is that the respondent who has already obtained a decision in his favour, on the basis of the pleadings, and on the evidence adduced on such pleadings in the trial court, is likely to be jeopardised by the amendment. Therefore, the question as to whether such an amendment should be allowed, has ordinarily to be considered only as a consequence of, or subsequent in point of time to, the examination of the records of the trial court, and the merits of the controversy. The appellate court must be convinced about the bona fides of the amendment, and about its necessity, and that grant of leave to amend was necessary in the interests of justice. Otherwise the position will be that decision properly rendered by the trial court, will be jeopardised, and the matter further prolonged, causing hardship and injury to the respondent. It is therefore, only proper that the appellate court considers the matter ordinarily while dealing with the appeal on merits. Cases other than mere formal amendments, substantively affecting the rights of the respondent, should therefore, be ordinarily dealt with only along with the appeal. 13. It is therefore, only proper that the appellate court considers the matter ordinarily while dealing with the appeal on merits. Cases other than mere formal amendments, substantively affecting the rights of the respondent, should therefore, be ordinarily dealt with only along with the appeal. 13. This was the view taken by the High Court of Mysore in Akka Nagamma v. Nageswariah, AIR 1968 Mysore 266, where Narayana Pai, J. observed: "Although the appellate court does have the power in appropriate circumstances to permit either of the parties before it to amend his pleading, the question whether such an amendment is necessary is also a question which can arise only as a consequence of and therefore subsequent in point of time to an examination of the records of the trial court and the merits of the controversy. To permit the parties at the appellate stage to amend the pleadings without first' convincing the appellate court that there is an error in the decree of the trial court would be to relieve them from the consequences of the trial court's order which is binding on them until it is set aside without examining the merits of the case and without coming to a conclusion that the said order suffers from any error. The type of error which persuades the appellate court to permit the parties to amend the pleadings is an error which is initially that of the parties themselves because having invited the decision of the trial court upon pleadings, originally presented by them, it is not open to them straightway to tell the appellate court that they be relieved by an order passed by the trial court in original pleadings and be permitted to invite its decision upon amended pleadings." 14. O.VI R.17 or any other provision of the Code does not oblige the appellate court to deal with an application for amendment before the disposal of the appeal. It is a matter of procedure. As stated earlier, if the amendment is of a purely formal nature, which does not have any impact on the rights of parties, there will be nothing wrong in the appellate court dealing with the application in the first instance even before dealing with the appeal. It is a matter of procedure. As stated earlier, if the amendment is of a purely formal nature, which does not have any impact on the rights of parties, there will be nothing wrong in the appellate court dealing with the application in the first instance even before dealing with the appeal. But where substantive rights are sought to be affected and the decision of the trial court is likely to be jeopardised by such amendment, the matter is best dealt with along with the appeal. The first respondent Subordinate Judge was therefore in the right in posting I.A.N6.2074 of 1987 for being heard along with the appeal. 15. It is true that it is the respondent in the appeal, who had succeeded in the trial court, that is wanting a disposal of the application for amendment even before the hearing of the appeal. But that will not alter the position in law. It is for the court to decide as to when the application should be heard and disposed of. If it feels that the amendment is of such a nature that it should be heard along with the appeal, it is open to the court to do so. No party can insist on its being heard at an earlier stage. 16. This original petition is one filed under Art.227 of the Constitution. This court will not interfere unless there is a gross irregularity in the procedure adopted by the appellate court. If the appropriate stage at which the application I.A.No. 2074 of 1987 is to be heard is along with the appeal, there is no impropriety or irregularity in the procedure adopted by the appellate court in posting it along with the appeal. 17. That an application for amendment made in the appellate stage can be dealt with along with the appeal, is evident from what the Supreme Court, the Privy Council or the Federal Court did in the following cases, where the amendments sought were dealt with and disposed of by those courts only along with the appeal. (See Leach and Co. v. Jardine Skinner and Co., AIR 1957 S.C. 357, Mahant Ramdhan Puri v. Chaudhury Lachmi Narain, AIR 1937 P.C. 42 and Secretary of State v. I. M. Lall, AIR 1945 P.C. 47). (See Leach and Co. v. Jardine Skinner and Co., AIR 1957 S.C. 357, Mahant Ramdhan Puri v. Chaudhury Lachmi Narain, AIR 1937 P.C. 42 and Secretary of State v. I. M. Lall, AIR 1945 P.C. 47). When the superior courts have themselves dealt with such applications only along with the appeal, it is obvious that the procedure adopted by the Subordinate Judge is warranted by practice and also by the law. 18. This original petition does not therefore, merit consideration. However, before closing the judgment I must take note of the conduct of the petitioner in the lower court. It was after the matter was argued for over two hours by counsel for the second respondent, that the petitioner came forward with the plea that the second respondent's counsel had appeared for him in this court in a proceeding arising out of the suit. The plea was not substantiated and only a vague affidavit was filed in court. The records in court did not at all bear out this representation. The petitioner's conduct is reprehensible and his representation was evidently made for extraneous considerations. The hearing of an old appeal of 1983 was stalled by such dubious tactics, and, having got the matter adjourned, by a false representation, the petitioner filed this original petition, in which the same allegation about the counsel's disqualification was repeated. Litigants ought not to be allowed to take the courts for a ride with such false representations and derive advantage therefrom. Though the second respondent has filed an application to prosecute the petitioner for making such an allegation in the original petition here, I am not dealing with it. I am informed that the second respondent has made a similar request before the Subordinate Judge as well. It will be for that court to deal with the application and to prosecute the petitioner if it is justified. In this court, I can express my displeasure on this conduct of the petitioner, by awarding cost to the second respondent, including advocate's fee of Rs .2,000/-. The original petition is dismissed with costs, including Advocate's fee Rs.2,000/-. Issue photo copy on usual terms. Dismissed.