1 OPC 442/24 2025:KER:28574 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 10th DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 OP(C) NO. 442 OF 2024 OS NO.7 OF 2022 OF ASSISTANT SESSIONS COURT/SUB COURT / COMMERCIAL COURT, THODUPUZHA PETITIONER/S: ANISH ANN LOUIS,AGED 39 YEARS,S/O LUICE, PINAKKATTU HOUSE, EDAPPADY P.O., EDAPPADY KARA, BHARANANGANAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686578 BY ADVS.MANU VYASAN PETER P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE AISWARYA MOHAN RESPONDENT/S: 1 DIANA SANTHOSH, AGED 60 YEARS W/O SANTHOSH, MEZHUKANEL HOUSE, VANDAMATTOM KARA, KODIKULAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685582 2 THEYYAMMA,AGED 85 YEARS W/O LUKA, PINAKKATTU HOUSE, MOOLAMATTOM KARA, ARAKKULAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685589 3 LALY,AGED 55 YEARS,W/O GEORGE, KEERIKATTU HOUSE, NAGAPPUZHA P.O., PALAKUZHY KARA, KALOORKAD VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686668 4 MATHEW,AGED 52 YEARS,S/O LUKA, PINAKKATTU HOUSE, MOOLAMATTOM P.O., ARAKKULAM, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685589 BY ADVS.MATHEW JOHN John ABY J AUGUSTINE(K/000302/2018) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.04.2025, THE COURT ON 10.4.2025 DELIVERED THE FOLLOWING: 2 OPC 442/24 2025:KER:28574 JUDGMENT (Dated this the 10th day of April 2025) The petitioner filed O.S.No.7 of 2022 before the Sub Court, Thodupuzha, for a declaration that the document executed by 1st defendant in favour of defendant Nos.2 to 4, is void and not binding on his co-ownership right over the plaint schedule property. A relief of partition and a permanent prohibitory injunction was also sought. 2. Respondent Nos.1 to 4 filed a written statement as Ext.P2 refuting the contentions in the plaint. It was contended that the suit properties are not co-ownership properties of petitioners and respondents. In the partition deed No.2734 of 1954, a provision was set up for management of the properties by the mother of the parties. Their paternal aunt one Thressyamma had obtained the properties and she bequeathed the same in 1982 in favour of the 1st defendant. Thus, the claim raised by the petitioner that defendants have no absolute right as per settlement deed No.1337 of 2019, was denied. 3. In view of the specific denial in the written statement, the 3 OPC 442/24 2025:KER:28574 petitioner filed replication contending that Thressyamma had no right to execute the document and she had never obtained title over the properties covered by the same. In response to replication, additional written statement was filed by respondent Nos.1 to 3. Separate additional written statement was filed by the 5th defendant. Then, the suit was listed for trial. PWs 1 to 5 were examined and the plaintiff’s evidence was closed. Respondent Nos.1 to 3 filed application as I.A.No.10 of 2024 to produce additional documents under Order 7 Rule 1A(3) CPC. 4. One of the documents sought to be produced is a release deed No.96 of 2020 of SRO, Thodupuzha whereby the 1st defendant purports to transfer his remaining rights in the properties which were already conveyed by settlement deed No.1337 of 2019. The court below allowed the application. 5. Petitioners filed a petition to review the order in I.A.No.10 of 2024 as R.P. in I.A.No.11 of 2024. The court below on 8.2.2024 allowed the review petition, restored it and after hearing 4 OPC 442/24 2025:KER:28574 both sides, allowed the application again. The trial court held that declining a party to the suit of the opportunity to file documents even if there is some delay, will lead to denial of justice. It was made clear that the relevance of the documents will be considered during a later stage. 6. Petitioner filed I.A. No.12 of 2024 seeking time to challenge Ext.P11. But the court below granted time only till 20.2.2024 and posted the case for defence evidence. Therefore, the petitioner has approached this court to set aside Ext.P11. 7. Heard 8. The counsel for the petitioner submits that when a new document is produced by the defendant, the court below ought to have given opportunity to amend the plaint and to incorporate a challenge to the new document which is produced through I.A.No.10 of 2024 more particularly, document No.1 which is the release deed No.966/2020 dated 08.07.2020. The court while allowing Ext.P11, had taken into consideration that denial of the opportunity to file 5 OPC 442/24 2025:KER:28574 document, even if there is some delay, will lead to denial of justice. But at the same time, the court did not grant opportunity to the plaintiff to make amendments to the plaint to challenge the additional documents. Thus, the court below has committed great irregularity. 9. The counsel for the respondents submits that the settlement deed bearing No.1337/2019 of SRO, Thodupuzha is a void document and it is not binding upon the plaintiff or his co- ownership right over the item no.1 of plaint schedule property. The release deed No.966 of 2020, which is produced along with I.A.No.10 of 2024, is executed as a consequence to the settlement deed to enable the purchasers to have mutation effected in their name. So, if ultimately the court declares the settlement deed as void, naturally the release deed has no legs to stand and cannot be acted upon. Therefore, no amendment is required to challenge the same. 10. It is also submitted that the release deed was not produced along with the written statement as the suit was for setting aside the settlement deed. Only when the plaintiff, while examining him as 6 OPC 442/24 2025:KER:28574 PW1, denied that the existence of the document is brought before the court. If the petitioner is permitted to file an amendment application, the entire evidence now recorded will have to be redone and fresh trial has to start. The intention is only to drag on the matter. Therefore, prayed that no liberty be granted to the petitioner. 11. Counsel for the petitioner argued that when a document is produced by the defendant at the belated stage, and the court below accepted it on the ground that depriving a party to the suit to file documents, even though belated, will lead to denial of justice. The same yardstick has to be given to the plaintiff also. If the petitioner is not given the liberty to move the court for amending the plaint, even if the suit is decreed, the release deed will stare at him, thereby a fresh suit has to be filed for setting aside the same. It is only to avoid multiplicity of proceedings that he be given an opportunity to file amendment application to challenge the release deed. Taking into consideration that a new document is produced by the defendant after the evidence of PW1, necessarily an opportunity 7 OPC 442/24 2025:KER:28574 should be given to the plaintiff to mould his relief in the plaint. Therefore, I am of the considered opinion that, for the ends of justice, I deem it appropriate to give liberty to the petitioner to move the court below with appropriate application for moulding his relief, if he is advised so. With the above observation, this O.P.(C) stands disposed of. Sd/- BASANT BALAJI, JUDGE dl/ 8 OPC 442/24 2025:KER:28574 APPENDIX OF OP(C) 442/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT DATED 26.02.2022 IN O.S NO. 7 OF 2022 ON THE FILE OF THE SUBORDINATE JUDGE’S COURT, THODUPUZHA Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 12.10.2022 FILED BY DEFENDANTS NO. 2 TO 4 IN O.S N. 7 OF 2022 ON THE FILE OF THE SUBORDINATE JUDGE’S COURT, THODUPUZHA Exhibit P3 TRUE COPY OF THE REPLICATION DATED 11.09.2023 IN O.S NO. 7 OF 2022 ON THE FILE OF THE SUBORDINATE JUDGE’S COURT, THODUPUZHA Exhibit P4 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT DATED 18.10.2023 FILED BY DEFENDANTS NO.2 TO 4 Exhibit P5 TRUE COPY OF THE WRITTEN STATEMENT DATED 14.11.2022 FILED BY DEFENDANT NO.5 IN O.S NO. 7 OF 2022 ON THE FILE OF THE SUBORDINATE JUDGE’S COURT, THODUPUZHA Exhibit P6 TRUE COPY OF THE APPLICATION I.A NO. 10 OF 2024 DATED 31.01.2024 IN O.S NO. 7 OF 2022 ON THE FILE OF THE SUBORDINATE JUDGE’S COURT, THODUPUZHA Exhibit P7 TRUE COPY OF THE RELEASE DEED BEARING NO. 966 OF 2020 DATED 08.07.2020 OF SRO THODUPUZHA Exhibit P8 TRUE COPY OF THE REVIEW PETITION I.A NO. 11 OF 2024 IN I.A NO. 10 OF 2024 IN O.S NO. 7 OF 2022 ON THE FILE OF THE SUBORDINATE JUDGE’S COURT, THODUPUZHA Exhibit P9 TRUE COPY OF THE COUNTER-AFFIDAVIT DATED 08.02.2024 IN I.A NO. 10 OF 2024 IN O.S NO. 7 OF 2022 ON THE FILE OF THE SUBORDINATE JUDGE’S COURT, THODUPUZHA Exhibit P10 TRUE COPY OF THE ADDITIONAL AFFIDAVIT DATED 09.02.2024 IN I.A NO. 10 OF 2024 IN O.S NO. 7 OF 2022 ON THE FILE OF THE SUBORDINATE JUDGE’S COURT, THODUPUZHA Exhibit P11 TRUE COPY OF THE ORDER DATED 13.02.2024 IN I.A 9 OPC 442/24 2025:KER:28574 NO. 10 OF 2024 IN O.S NO. 7 OF 2022 ON THE FILE OF THE SUBORDINATE JUDGE’S COURT, THODUPUZHA Exhibit P12 TRUE COPY OF THE ORDER DATED 14.02.2024 IN O.S NO. 7 OF 2022 ON THE FILE OF THE SUBORDINATE JUDGE’S COURT, THODUPUZHA OBTAINED FROM THE E- COURTS WEBSITE