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2016 DIGILAW 928 (KER)

Priyalekshmi v. Vimalkumar S/o. Raghavan Pillai

2016-11-01

SATHISH NINAN

body2016
JUDGMENT : Dismissal of an application seeking amendment of the plaint in O.S. No.15 of 2012 of the Munsiff's court, Haripad is under challenge in this Original Petition by the plaintiff in the suit. 2. The suit, O.S. No.15 of 2012, was instituted by the plaintiff herein for the relief of declaration of prescriptive easement right of way over plaint G schedule, for a mandatory injunction to remove the H schedule gate installed across the plaint G schedule way and to remove other obstructions to the way. In paragraph 7 of the plaint it was specifically pleaded that the defendants obstructed the plaint G schedule way in the year 2008 by installing an iron gate, and that the said gate was scheduled to the plaint as H. In paragraph 17 of the plaint also, it was further averred that installation of the gate across the plaint G schedule was in the year 2008. 3. The Defendants filed a written statement opposing the plaint claim. Thereafter plaintiff filed I.A. No.522 of 2013 under Order VI Rule 17 of the Code of Civil Procedure seeking amendment of the plaint. Essentially the amendment sought for was that, the year of obstruction stated by the plaintiff in the above referred paragraphs of the plaint as “2008” has to be amended as “32 months before”. The said amendment application is produced as Ext.P3. In the affidavit filed in support of the application seeking amendment, it was sworn to by the plaintiff that the mistake was occasioned due to a typographical error. It was on the said ground that the plaintiff sought to justify the amendment. To the said application, defendants filed objections, produced as Ext.P4 in the original petition. In the said objections it was contended that the explanation offered by the plaintiff in seeking the amendment, is prima facie false and that amendment regarding the date of obstruction caused to the alleged way will substantially affect the contentions of the defendants especially since the suit is one for mandatory injunction claiming prescriptive easement right. 4. The learned Munsiff after hearing the parties dismissed the application as per Ext.P5 order holding that the amendment sought for is not necessary for deciding the real dispute between the parties and that prima facie it is seen that the amendment is sought for to escape from the period of limitation. 4. The learned Munsiff after hearing the parties dismissed the application as per Ext.P5 order holding that the amendment sought for is not necessary for deciding the real dispute between the parties and that prima facie it is seen that the amendment is sought for to escape from the period of limitation. It was further taken note of by the learned Munsiff that the defendants in the present case had filed O.S No.83 of 2011 against the mother of the plaintiff as defendant, alleging that attempt is being made to create a motorable pathway, which is the disputed way in the present case. In the written statement filed by the mother of the plaintiff in O.S No.83 of 2011, in paragraph 20, it was stated that the defendants in the present case obstructed the pathway by installing a gate in the year 2008. The year of obstruction has not been amended in the said case. The same was pointed out by the Munsiff to suggest lack of bonafides of the contention of the present petitioner/plaintiff. 5. It is true that amendments are to be liberally granted. But it cannot be claimed as a matter of right and under all circumstances. A hyper technical approach is not to be adopted. But, it has also to be looked into as to whether the proposed amendment would work out any serious injustice to the other side. In Bhaskaran Nair Vs. Chandramathiyamma, 2006 (1) KLT 533 it has been held that while considering an application for amendment, the element of bonafides should also go into the zone of consideration. As noted above, amendment is not a matter of right. The party is, in most of the cases, praying for indulgence and assistance of the court to rectify a mistake or an omission that has crept in on account of his fault or otherwise. While seeking an amendment, the parties are essentially seeking invocation of the equitable jurisdiction of the Court. In Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others, 2006 (4) SCC 385 it has been held that it is settled by a catena of decisions of the Apex Court that the rule of amendment is essentially a rule of justice, equity and good conscience. Under such circumstances, it is obligatory on the part of the applicant to approach the court with clean hands. The application should not be tainted with malafides. Under such circumstances, it is obligatory on the part of the applicant to approach the court with clean hands. The application should not be tainted with malafides. If the court finds that the application lacks bonafides, the court will refuse to render assistance to the party. In the instant case, the suit for declaration of prescriptive easement and for mandatory injunction was laid on the specific averment that the way in question was obstructed by the defendants in the year 2008. A written statement was filed by the defendants in the suit. Now the plaintiff seeks for an amendment to the effect that the obstruction was caused 32 months prior to the institution of the suit. In the affidavit filed in support of the amendment application, the reason for the mistaken statement in the plaint is given as “typographical error”. By no stretch of imagination it could be taken that the said explanation is genuine. The defendants have a contention that the suit is barred by limitation and that the attempt on the part of the plaintiff is to tide over the issue of limitation and that is the motive behind the filing of the application. This Court and the Apex Court has held that merely because a relief is barred by limitation, it does not prevent the plaintiff from seeking an amendment for incorporating even a new relief. Therefore, even assuming that the present amendment sought for would aid the plaintiff from tiding over the issue of limitation, still that alone would not be a ground for refusing the application for amendment. However, in the case at hand, the reason given by the plaintiff for seeking the amendment, on the face of it, is without any bonafides. He cannot seek for amendment as a matter of course. As has been discussed earlier, while considering an application for amendment, the element of bonafides must also go into the zone of consideration. I find that the reason given by the plaintiff in seeking for amendment is totally unacceptable and lacks bonafides. Under the circumstances, I am not inclined to exercise the equitable jurisdiction of this Court. In the result, the original petition is dismissed.