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2026 DAILYLAW 588 (KER)

K. C. Praveesh Kumar v. K. C. Pavithran

2026-05-19

Syam Kumar V M

body2026
JUDGMENT : Syam Kumar V.M., J. This O.P.(C) is filed challenging the order dated 31.08.2021 in I.A.No.2400 of 2017 and I.A.No.2399 of 2017 in O.S.No.56 of 2015 on the files of the Additional Munsiff Court, Kannur. Petitioner was the petitioner in the said I.As and plaintiff in the suit. 2. I.A.No.2400 of 2017 was filed by the petitioner under Order VI Rule 17 of the CPC seeking amendment of the plaint. The said I.A. was dismissed by the learned Munsiff, inter alia holding that the relief sought to be included by way of amendment had no nexus to the existing prayer in the suit. I.A.No.2399 of 2017 was filed under Order XXXIII Rule 1 of CPC. The said petition was dismissed inter alia holding that the criteria mentioned in the said provision had not been met. 3. I have heard Smt.P.Maya, Advocate for the petitioner. Though service was complete, no appearance was entered into on behalf of the respondents. 4. It is the contention of the learned counsel for the petitioner that the learned Munsiff erred in dismissing the petitions. The amendment petition, it is submitted, was valid and sustainable and ought to have been allowed. The 2nd respondent/2nd defendant, who is the mother of the petitioner, it is submitted, was incompetent to enter into any contract, being a person of unsound mind, as contemplated under Section 11 of the Indian Contract Act. It is submitted that the court below ought to have found that the prayer originally sought for in the suit does not require the disclosure of mental status of the 2nd respondent mother and the court below also should have appreciated that no children would like to disclose the mental illness of their mother before any authority unless and until it is absolutely necessary. It is contended that the petitioner is entitled to challenge the execution of the assignment deed in question on account of the mental illness of the 2nd respondent. Reliance is also placed on Exhibit P8 to Exhibit P10 and it is contended that the 2nd respondent is suffering from schizophrenia and that she is incapable of understanding and forming a rational judgment as to the effect, impact on her interest by execution of such a settlement deed in favour of the 1st respondent. Reliance is also placed on Exhibit P8 to Exhibit P10 and it is contended that the 2nd respondent is suffering from schizophrenia and that she is incapable of understanding and forming a rational judgment as to the effect, impact on her interest by execution of such a settlement deed in favour of the 1st respondent. The court below, it is submitted, had erroneously held that the decree for declaration without a consequential relief is not proper and the finding that the amendment sought will change the entire nature and character of the suit is also erroneous insofar as there would be no change in the nature or subject matter of the suit if the amendment is allowed. It is also contended that the petitioner had without any delay sought for amendment of the plaint on knowing that a settlement deed had been executed by the 2nd respondent in favour of the 1st respondent and the proposed amendment will not cause any irreparable loss and hardship to the respondents and ought to have been allowed. 5. I have heard the learned counsel for the petitioner in detail and have considered the contentions put forth. It is noted that the learned Munsiff had while dismissing the amendment application concluded that in the plaint, there was no pleading at all to the effect that the 2nd respondent mother was under treatment for any mental illness. The learned Munsiff had also noted that the relief sought to be included by way of amendment had no nexus with the prayer made in the plaint. Insofar as the 2nd respondent who had executed the deed in favour of the 1st respondent had filed a written statement stating that she had executed the deed with full knowledge of the execution of the deed and as the said objection filed by the 2nd respondent further revealed that she is the sole owner of the plaint schedule property, thus admitting the execution of the document, it was concluded by the learned Munsiff that the 2nd respondent mother was competent to alienate the property to anybody as per her wish and the only person who could challenge the deed was the mother herself. Pertinently, the learned Munsiff had also noted that the prayer sought to be included by way of amendment was only a prayer for declaration and no consequential relief had been sought. Pertinently, the learned Munsiff had also noted that the prayer sought to be included by way of amendment was only a prayer for declaration and no consequential relief had been sought. The learned Munsiff thus concluded that the amendment sought will change the entire nature and character of the suit and the petition praying for the same was found not fit to be allowed. As regards the indigent petition, noting that the petitioner was a contract worker doing interior works for home and industrial establishments and did not meet the mandates of Order XXXIII Rule 1 of the CPC, the learned Munsiff had dismissed the same. 6. It is trite and settled that a plaintiff cannot amend his plaint to introduce a completely new cause of action or in such a way as to alter the fundamental essence and subject matter of the original lawsuit. One of the important factor to be looked into while considering amendment applications is whether the amendment would cause prejudice to the other side and whether it would fundamentally change the nature and character of the case or a fresh suit on the amended claim would be barred on the date of filing the application [See Basavaraj v. Indira and others [2024 KHC 6101]; M. Revanna v. Anjanamma (dead) by Legal Representatives and others [ (2019) 4 SCC 332 ]; Revajeetu Builders and Developers v. Narayanaswamy and sons and others [ (2009) 10 SCC 84 ] ; Vidyabai and others v. Padmalatha and another [ (2009) 2 SCC 409 ] . 7. In the case at hand, suit was one for injunction simplicitor. The prayer was for a permanent prohibitory injunction restraining the 1st respondent from or blocking or making any obstruction to the petitioner and his family from entering into the plaint schedule property or house or visiting the petitioner's mother who lived in the house situated in the plaint schedule property. After filing of the suit, the 2nd respondent who is none other than the mother of the petitioner and the 1st respondent, got herself impleaded as the 2nd defendant in the suit and filed a written statement, inter alia stating that the plaint schedule property had been assigned by her to the 1st respondent as per Deed No.529/2011 of SRO Kannur. She admitted the execution of such a document and further stated that she had executed the deed with full consent and knowledge. It is at this stage that the I.A. for amendment of the plaint was filed by the petitioner seeking to incorporate a prayer for declaration that the relevant settlement deed is illegal, vitiated by fraud, undue influence and coercion and that the same is thus not binding on the petitioner. 8. In the above fact situation, I find merit in the conclusion arrived at by the learned Munsiff that the prayer sought to be incorporated by way of amendment had the potential to change the nature of the suit and the subject matter. The contention that the prayer originally sought for in the suit does not require the disclosure of mental status of the 2nd respondent mother, and that no children would like to disclose the mental illness of their mother before any authority unless and until it is absolutely necessary is not sustainable in the light of the settled law founded in highly placed precedents that a plaintiff cannot amend his plaint to introduce a completely new cause of action or in such a way as to alter the essence and subject matter of the original lawsuit. 9. As regards the dismissal of the indigent petition, the law, concerning the grant of permission to institute a suit as an indigent person, is trite and settled. In Union Bank of India v. Khader International Construction and others [ (2001) 5 SCC 22 ], the Hon’ble Supreme Court has succinctly laid down as follows: "Order XXXIII, CPC is an enabling provision which allows the filing of a suit by an indigent person without paying the court fee at the initial stage. If the plaintiff ultimately succeeds in the suit, the court would calculate the amount of court fee which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person and that amount would be recoverable by the State from any party ordered by the decree to pay the same. It is further provided that when the suit is dismissed, then also the State would take steps to recover the court fee payable by the plaintiff and this court fee shall be a first charge on the subject matter of the suit. It is further provided that when the suit is dismissed, then also the State would take steps to recover the court fee payable by the plaintiff and this court fee shall be a first charge on the subject matter of the suit. So there is only a provision for the deferred payment of the court fees and this benevolent provision is intended to help the poor litigants who are unable to pay the requisite court fee to file a suit because of their poverty." Nothing has been placed before me to challenge the finding of the learned Munsiff that such a petition did not meet the mandates laid down in Order XXXIII Rule 1 of the CPC. In view of the above, I find no reason to interfere with the orders rendered by the learned Munsiff dated 31.08.2021 in I.A.No.2400 of 2017 and I.A.No.2399 of 2017 in O.S.No.56 of 2015. This O.P.(C) is dismissed. All I.As are closed.