The petitioner calls in question Ext.P4 order of the Principal Sub Court, Thiruvananthapuram whereby the court below dismissed Ext.P1 amendment application. The facts absolutely necessary for the purpose of disposal of this original petition are as follows: 2. O.S.No.244/1989 was a suit for partition instituted by the 1st respondent herein claiming a share over the suit property. The 1st defendant filed a written statement wherein she disputed the share available to the plaintiffs. During the pendency of the suit, the 1st defendant died and her legal heirs were brought on the party array as defendants 4 to 6. After trial, preliminary decree was passed in which the plaintiffs were given 1/4th share of the property. Two sets of appeals were filed before this Court by the aggrieved defendants. A.S.No.864/1998 was filed by defendants 1 and 3 to 6 and A.S.No.47/1998 was filed by the 2nd defendant. The appeals were disposed of by a common judgment dated 28.05.2010. By the said judgment, the finding of the trial court that plaintiffs are entitled to 1/4th share was confirmed and this Court found that there are no grounds to interfere with the said finding. Since there was an inter se dispute between the parties regarding the share, this Court remanded the case with the following observation :
“(2) Defendants 3 to 6 are permitted to have additional pleadings and they are also permitted to produce the original of the will and prove it in accordance with law and the second defendant is also entitled to file his rejoinder or whatever it may be, to resist that claim and adduce evidence in support of that contention. If the second defendant is ultimately found to be entitled to the share, then that has also to be worked out in the suit by determining the shares of each of the defendants. The parties are directed to appear before the court below on 8.7.2010. Being a very old matter special care be taken to dispose of the matter as expeditiously as possible and not later than four months from the date of appearance of the parties before the court”.
3. After the matter was remanded, final judgment was passed on 08.11.2010 whereby the trial court declared that the legal heirs of the 1st defendant is entitled to 3/4th share. Thereafter I.A.No.5686/2010 was moved by the plaintiffs in the suit for passing of final decree. While that was pending, defendants 4 to 6 moved I.A.No.3678/2013 to amend the written statement incorporating the plea that estate was impartible and preliminary decree passed has to be set aside. Objections were filed by the contesting respondents and the court below by the impugned order refused to allow the amendment. It is the said order that is under challenge.
4. Sri.T.Krishnanunni, learned Senior Counsel appearing for the petitioner contended that final decree proceedings are still pending and there is no justification as to why the amendment sought for should have been declined. It is trite, according to the learned Senior Counsel, that any number of preliminary decrees could be passed before final decree is passed. Viewed from that angle, there is no justification for the court below to decline the relief. A document which is crucial in this regard was omitted to be noticed and that caused mistake and proper contentions were not taken in the written statement. Learned Senior Counsel went on to point out that merely because of an omission, justice may not be denied to the petitioner.
5. Sri.P.B.Krishnan, learned counsel appearing for the respondents contended that the position is not so innocuous as is pointed out by the learned Senior Counsel for the petitioner. Apart from the fact that there was no pleading regarding the impartibility of share by any one of the parties, the petitioner before this Court has not disclosed that preliminary decree has been confirmed in appeal at least as regards the share available to the plaintiffs. Further, a review was attempted on the basis of which amendment of the written statement was sought for and now that was also declined. Yet again, learned counsel pointed out that after the impugned order was passed, one of the defendants challenged the order in O.P.(C) No.799/2014 which was later withdrawn and it was dismissed by order dated 10.11.2014. Thereafter the petitioner comes forward with the present original petition seeking the very same relief which was sought for earlier. Learned counsel went on to point out that the preliminary decree has become final and it has merged with the judgment of this Court and the written statement alleged to be amended has no consequence as far as the preliminary decree is concerned. It is unfortunate that most of the facts are concealed in this petition. There is no mention about the judgment in appeal passed by this Court wherein the share due to the plaintiffs was confirmed as 1/4th accepting the share determined by the trial court on the original side. It is also not disclosed to this Court that there was a review petition in which the very same amendment was agitated. This Court in its remand order in common judgment in A.S.Nos.47 & 864 of 1998 confined the enquiry of the trial court to the inter se dispute between the respondents and it was so careful to confirm that the share due to the plaintiffs does not call for any interference. As rightly pointed out by the learned counsel for the respondents, the declaration that the plaintiffs are entitled to 1/4th share stands confirmed by the judgment of this Court by virtue of the common judgment in the two appeals which has already been made mention of.
6. It is significant to notice that even in the review petition filed against the common judgment, an attempt to bring about the amendment now sought for was made but that was not accepted by this Court. It is thereafter that the present amendment was sought for with regard to written statement. Learned counsel for the respondents pointed out that the amendment now sought for in fact replaces the admissions in the original case and if allowed a denovo trial has to be conducted which is not contemplated in law.
7. The court below was therefore perfectly justified in declining to grant the relief sought for by way of amendment. There is no illegality, impropriety or irregularity in the order of the court below warranting interference under Article 227 of the Constitution of India.
This petition is without merits and it is accordingly dismissed.
Sd/-
smp P.BHAVADASAN JUDGE