Kerala High Court
Archana Devi vs Mini Philip on 13 July, 2026
Author: Anil K. Narendran
Bench: Anil K. Narendran
2026:KER:51174
W.A.No.734 of 2026 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
MONDAY, THE 13TH DAY OF JULY 2026 / 22ND ASHADHA, 1948
WA NO. 734 OF 2026
AGAINST THE ORDER DATED 05.03.2026 IN I.A.NO.1 OF 2026 IN
WP(C)NO.4017 OF 2018 OF THE HIGH COURT OF KERALA
APPELLANT/5TH RESPONDENT IN WP(C)/5TH RESPONDENT IN I.A.NO.1 OF
2026:
ARCHANA DEVI, AGED 36 YEARS
NEWLY APPOINTED HSST (ENGLISH), ST.THOMAS H.S.S.,
KADAMBANAD P.O., PATHANAMTHITTA DISTRICT, PIN-
691552. NEW ADDRESS HIGHER SECONDARY SCHOOL
TEACHER (SENIOR) (ENGLISH), ST. THOMAS HIGHER
SECONDARY SCHOOL, KADAMPANAD P.O., PATHANAMTHITTA
DISTRICT, PIN-691 552
BY ADVS.SRI.H.VISHNUDAS
SRI.O.V.RADHAKRISHNAN (SR.)
SRI.P.ABDUL NISHAD
SHRI.GEORGE VARGHESE
RESPONDENTS/APPLICANT/PETITIONER AND RESPONDENT NO.1 TO 4 IN
I.A.NO.1 OF 2026:
1 MINI PHILIP, AGED 42 YEARS
D/O.LATE P.D.PHILIP, VARSHA, MANAKKALA P.O., PIN-
691551, NOW WORKING AS HSA (ENGLISH), ST.THOMAS
H.S.S., KADAMBANAD P.O., PATHANAMTHITTA DISTRICT,
PIN-691552.
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W.A.No.734 of 2026 2
2 STATE OF KERALA, REPRESENTED BY THE SECRETARY,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695001.
3 THE DIRECTOR OF HIGHER SECONDARY EDUCATION
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM, PIN-695001.
4 REGIONAL DIRECTOR OF HIGHER SECONDARY EDUCATION
CHENGANNOOR, PATHANAMTHITTA-691553.
5 MANAGER
ST.THOMAS H.S.S., KADAMBANAD P.O., PATHANAMTHITTA
DISTRICT, PIN-691552.
BY ADVS.SRI.J.JULIAN XAVIER
SRI.FIROZ K.ROBIN
SRI.ROY JOSEPH
SHRI.AKHIL P.C.
SMT.ASWATHY SUSAN PAUL
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2026,
THE COURT ON 13.07.2026 DELIVERED THE FOLLOWING:
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W.A.No.734 of 2026 3
"C.R"
JUDGMENT
Anil K. Narendran, J.
The appellant is the 5th respondent in W.P.(C)No.4017 of
2018, which was one filed by the 1st respondent herein, who is
working as HSA (English) in St. Thomas Higher Secondary School,
Kadambanad, invoking the extraordinary jurisdiction of this Court
under Article 226 of the Constitution of India, seeking a writ of
certiorari to quash Ext.P7 order dated 21.08.2017 of the 1st
respondent State, to the extent it sanctioned the post of Higher
Secondary School Teacher (Junior) English [HSST (Jr.) English] in
the school managed by the 4th respondent Manager, vide Column
No.12 of Annexure 1 to the said Government order, and a further
declaration that HSST (English) post is sanctionable in the said
school, on account of the workload in English, for the academic
years 2014-15 and 2015-16; a declaration that non-reckoning of
three batches of English functioning in the school managed by the
4th respondent, from the academic years 2014-15 and 2015-16, in
the matter of sanctioning posts in Ext.P7 Government order,
whereas reckoning all the batches functioning from the academic
years 2014-15 and 2015-16 in respect of the subjects like
Commerce, Economics and Computer Science, and sanctioning full
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W.A.No.734 of 2026 4
time posts in those subjects in Ext.P7 Government order is
discriminatory, arbitrary and violative of Articles 14 and 16(1) of
the Constitution of India as well as violative of the statutory scheme
of Chapter XXXII of the Kerala Education Rules, 1958 (KER); a writ
of certiorari to quash Ext.P9 notification dated 28.08.2017 issued
by the 4th respondent Manager, in pursuance of Ext.P7 Government
order dated 21.08.2017, to the extent it relates to HSST (Jr.)
English post/vacancy, and quash all further proceedings pursuant
to the said notification relating to HSST (Jr.) English post/vacancy,
including the selection, appointment and approval, if any, of the 5th
respondent as HSST (Jr.) English; and a writ of mandamus
commanding the respondents to sanction HSST (English) post in
the school managed by the 4th respondent, taking into account the
workload in English during the academic years 2014-15 and 2015-
16, pertaining to three batches – two in Commerce (standards XI
and XII) and one in Science (standard XI), and further direct the
4th respondent Manager to notify the said vacancy for in-service
appointment, as per Chapter XXXII of KER, as a vacancy pertaining
to the academic years 2014-15 and 2015-16, and further direct the
respondents to ensure that the petitioner is the senior most HSA in
the subjects in respect of which selection is already over to the post
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W.A.No.734 of 2026 5
of HSST, pursuant to Ext.P7 Government order and Ext.P9
notification issued by the 4th respondent Manager.
2. Along with the writ petition, the petitioner-the 1st
respondent herein has placed on record Exts.P1 to P12. The 5th
respondent-appellant herein, who was appointed as HSST Jr.
English, filed a counter affidavit dated 15.05.2018, opposing the
reliefs sought for in the writ petition, producing therewith
Exts.R5(a) to R5(i). The 3rd respondent Regional Director of Higher
Secondary Education, the 4th respondent herein, filed a counter
affidavit dated 31.07.2018. The 5th respondent filed an additional
counter affidavit dated 04.03.2019, producing therewith Exts.R5(j)
Government order dated 16.10.2018 and Ext.R5(k) consequential
order dated 29.10.2018 passed by the Regional Director of Higher
Secondary Education.
3. On 16.01.2026, the petitioner, 1st respondent herein,
filed I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018, invoking the
provisions under Rule 155 of the Rules of the High Court of Kerala,
1971, seeking an order to amend the writ petition, by incorporating
additional statement of facts, grounds and reliefs. Such an
amendment was sought for to challenge Ext.R5(j) order dated
16.10.2018 issued by the 1st respondent State and Ext.R5(k) order
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W.A.No.734 of 2026 6
dated 29.10.2018 issued by the 3rd respondent Regional Director
of Higher Secondary Education. Those orders, which were already
on record as Exts.R5(j) and R5(k) in the additional counter affidavit
filed by the 5th respondent, are marked as Exts.P13 and P14 in the
affidavit filed in support of I.A.No.1 of 2026.
4. In paragraph 3 of the affidavit filed in support of
I.A.No.1 of 2026, the applicant-petitioner has pointed out that
along with the additional counter affidavit filed in the writ petition,
the 5th respondent produced two documents related to her approval
of appointment as HSST (Jr.) English and marked the same as
Exts.R5(j) and R5(k). The petitioner was unaware of Exts.R5(j) and
R5(k) till she approached the office of her previous counsel to know
the position of the case during June, 2021. In paragraph 4 of the
affidavit filed in support of I.A.No.1 of 2026, it is stated that,
though a copy of the counter affidavit filed by the 5th respondent
was served on her previous counsel, neither a reply affidavit nor
an application to amend the writ petition was filed initially due to
the COVID-19 crisis. Thereafter, she engaged another counsel, who
informed her in July, 2021, about the necessity to amend the writ
petition challenging the orders passed by the 1 st respondent State
and the 3rd respondent Regional Director of Higher Secondary
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W.A.No.734 of 2026 7
Education, and the amendment petition dated 04.09.2021 was
filed. However, that petition seems to be misplaced. The petitioner,
on verifying the status of the case, came to know that the
application for amendment did not come up. There is no wilful delay
or laches on the part of the petitioner in amending the writ petition,
which ought to have been done in the year 2021. The delay in
amending the writ petition happened due to the subsequent
misplacement of the case file. A copy of the Government order
dated 28.03.2009 issued by the 1st respondent State approving
B.Ed. degree awarded by Indira Gandhi National Open University
(IGNOU) as an alternative qualification for appointment as
teachers, is marked as Ext.P15.
5. In I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018, the 5th
respondent, the appellant herein, filed a counter affidavit dated
07.02.2026, opposing the relief sought for. In the counter affidavit,
it is contended that incorporating additional grounds and reliefs in
a writ petition, which was admitted on 06.02.2018, by filing
I.A.No.1 of 2026 on 16.01.2026, is not maintainable. Such an
application cannot be entertained at this distance of time, without
showing any reasonable explanation or cogent reason for the
inordinate delay in filing the application for amendment. In the said
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W.A.No.734 of 2026 8
application, the petitioner is seeking amendment of the writ
petition by adding a prayer for setting aside Ext.R5(j) order dated
16.10.2018 of the 1st respondent State and Ext.R5(k) order dated
29.10.2018 of the 3rd respondent Regional Director of Higher
Secondary Education, which are produced along with the additional
counter affidavit filed by the 5th respondent on 04.03.2019. The
belated challenge made by way of an amendment of the writ
petition, by incorporating additional statement of facts, grounds
and reliefs, is liable to be thrown out on the ground of delay.
Though a copy of the additional counter affidavit filed on
04.03.2019 was served on the learned counsel for the petitioner,
no reply affidavit or application for amendment was filed till
16.01.2026. The explanation offered in the affidavit filed in support
of the application for amendment is neither good nor valid for the
inordinate delay in filing the application for amendment. The
petitioner engaged another counsel in the year 2021. Though the
said counsel informed the petitioner about the necessity to amend
the writ petition, for challenging the orders passed and the
application for amendment of the writ petition was filed on
04.09.2021, no reasonable explanation is offered as to the
circumstances for the alleged misplacement of that application,
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W.A.No.734 of 2026 9
which is not substantiated by any material or evidence in proof.
Therefore, the 5th respondent contended that the application for
amendment is liable to be dismissed, on account of delay and
laches.
6. After considering the rival contentions, the learned
Single Judge, by the impugned order dated 05.03.2026, allowed
I.A.No.1 of 2026, after rejecting the objections raised by the 5 th
respondent. In the said order, the learned Single Judge found that
merely allowing the amendment application no prejudice will be
caused to the 5th respondent, appellant herein, since Ext.P14
Government order itself states that the approval of the
appointment will be subject to the result of W.P.(C)No.4017 of
2018. Paragraph 4 and also the last paragraph of the order dated
05.03.2026 of the learned Single Judge read thus;
“4. I have considered the rival submissions. On going through
the affidavit filed in support of the application, it appears that
the reason assigned for the delay is the misplacement of the
file in the office of the counsel for the petitioner and the
confusion that prevailed during the period of restrictions
imposed pursuant to the COVID-19 pandemic, when the
system of online filing was introduced for the first time. It is
stated that the earlier amendment petition had been filed
physically and was not properly registered. I do not find any
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W.A.No.734 of 2026 10reason to disbelieve such contention. Merely allowing the
amendment application will not cause any prejudice to the
5th respondent, since Ext.P14 itself states that the approval
of application [sic: appointment] is subject to the result of
this writ petition.
Taking note of the above circumstances, I deem it
appropriate to allow the application seeking amendment of
the pleadings. Accordingly, the I.A. is allowed, rejecting the
objections raised by the respondents. The petitioner shall file
the amended copy of the writ petition.”
(underline supplied)
7. Challenging the order dated 05.03.2026 of the learned
Single Judge in I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018, the
appellant-5th respondent has filed this writ appeal, invoking the
provisions under Section 5(i) of the Kerala High Court Act, 1958,
by contending that, while passing the impugned order, the learned
Single Judge failed to exercise the discretion to condone the delay
in filing such an application for amendment, in a reasonable and
objective manner. The learned Single Judge proceeded to condone
the delay on the bald and sweeping averments made in the affidavit
filed in support of I.A.No.1 of 2026. The reasoning of the learned
Single Judge in the impugned order, for rejecting the objections
raised by the 5th respondent-appellant herein, is without addressing
itself to the well settled legal position that proof of sufficient cause
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W.A.No.734 of 2026 11
is a condition precedent for exercising the extraordinary discretion,
in the matter of condoning inordinate and huge delay in seeking
amendment of the pleadings and incorporation of additional reliefs,
which has caused irreparable loss to the appellant. The appellant
has placed reliance on the decision of the Apex Court in Bharat
Singh v. State of Haryana [(1988) 4 SCC 534].
8. On 25.03.2026, when this writ appeal came up for
admission, this Court heard detailed arguments of the learned
Senior Counsel for the appellant-5th respondent, as instructed by
the learned instructing counsel. The learned Senior Counsel cited
the decisions of the Apex Court in Sheo Raj Singh v. Union of
India [(2023) 10 SCC 531], U.P. Jal Nigam v. Jaswant Singh
[(2006) 11 SCC 464] and Lanka Venkateswarlu v. State of
Andhra Pradesh [(2011) 4 SCC 363]. During the course of
arguments, the learned counsel for the 1st respondent-petitioner
made available for the perusal of this Court the office copy of the
interlocutory application filed in the year 2021, during Covid-19
pandemic period, seeking a similar relief to amend W.P.(C)No. 4017
of 2018, a reference to which has been made in paragraph 4 of the
affidavit filed in support of I.A.No.1 of 2026. After arguing for some
time, the learned counsel for the 1st respondent-petitioner sought
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W.A.No.734 of 2026 12
a short adjournment to address arguments with reference to the
aforesaid decisions cited by the learned Senior Counsel for the
appellant-5th respondent. The learned counsel submitted that he is
not furnished with a copy of the authorities cited by the learned
Senior Counsel for the appellant-5th respondent or a list of
authorities.
9. As noticed in the order dated 25.03.2026, on a query
made by this Court, the submission made by the learned instructing
counsel for the learned Senior Counsel for the appellant-5th
respondent, was that neither the list of authorities nor a copy of
the authorities cited by the learned Senior Counsel was served on
the learned counsel for the 1st respondent-petitioner or on the
learned Senior Government Pleader for respondents 2 to 4.
Therefore, in the order dated 25.03.2026, this Court noticed that
such a course adopted by the learned instructing counsel for the
learned Senior Counsel for the appellant-5th respondent is highly
inappropriate. Before citing the decisions, the learned instructing
counsel ought to have served the list of authorities he proposes to
cite to the learned counsel for the party respondents and also to
the learned Senior Government Pleader for the State and official
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W.A.No.734 of 2026 13
respondents. Rule 95 of the Rules of the High Court of Kerala, 1971,
requires counsel to exchange the list of authorities.
10. On 30.03.2026, when this writ appeal came up for
consideration, the 1st respondent-petitioner filed I.A.No.1 of 2026
seeking an order to accept Annexure R1(a), which is stated to be a
copy of the amendment petition dated 04.09.2021 filed in
W.P.(C)No.4017 of 2018, by the petitioner seeking the very same
reliefs sought for in I.A.No.1 of 2026 W.P.(C)No.4017 of 2018.
Paragraph 2 of the affidavit dated 30.03.2026 filed in support of
I.A.No.1 of 2026 in this writ appeal, which is one filed invoking the
provisions under Order XLI Rule 27 of the Code of Civil Procedure,
1908, reads thus;
“2. The above writ appeal is filed mainly challenging the
interim order permitting the 1st respondent herein to amend
the writ petition. Though it is specifically mentioned in the
petition for amending the writ petition about the filing of the
petition dated 04.09.2021 for amending the writ petition,
copy of the same was not produced. It was due to an
oversight that the copy of the amendment petition dated
04.09.2021 was not produced. Copy of the amendment
petition dated 04.09.2021 in W.P.(C)No.4017 of 2018,
excluding the exhibits, is produced herewith and may be
marked as Annexure R1(a). The above document is highly
necessary for the just and proper disposal of the above writ
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W.A.No.734 of 2026 14appeal. The inconvenience caused to this Hon’ble Court is
sincerely regretted. A separate petition is filed along with this
affidavit for accepting the above document on file. If the
accompanying petition is not allowed, it will cause irreparable
injury and hardship to the petitioner. Hence it is most humbly
prayed that the accompanying petition may be allowed to
attain the ends of justice.”
11. The appellant, who is the 1st respondent in I.A.No.1 of
2026, filed a counter affidavit dated 03.04.2026, opposing the
reliefs sought for in the said interlocutory application, producing
therewith Annexure I case status of W.P.(C)No.4017 of 2018, taken
from Case Management System (CMS). Paragraphs 4 and 5 of the
counter affidavit filed in I.A.No.1 of 2026 read thus;
“4. In the facts and circumstances of the case, the relevant
provision for production of additional evidence in the
Appellate court is governed by Rule 27(1)(aa) under Order
XLI of the Code of Civil Procedure, whereunder, the party
seeking to produce additional evidence, must establish that
notwithstanding the exercise of due diligence, such evidence
was not within his knowledge or could not, after the exercise
of due diligence, be produced by him at the time when the
decree appealed against was passed. Signally, I.A.No.1 of
2026 in W.A.No.734 of 2026 is filed under Order XLI Rule 27
of the Code of Civil Procedure. In the affidavit in support of
petition [I.A.No.1 of 2026 in W.P.(C) No.4017 of 2018] it is
specifically stated: “Thereafter I have engaged another
counsel during July, 2021 and the counsel informed the
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W.A.No.734 of 2026 15necessity of amending the writ petition challenging the
orders passed by the respondents 1 and 3 respectively.
Thereafter, the Amendment Petition dated 04.09.2021 was
filed.” Therefore, it cannot be heard to be contend by any
stretch of logic or imagination that Ext.P13-G.O.(Rt.)
No.4224/2018/GED dated 16.10.2018, Ext.P14-order
No.433/C4/2018 RDD/C.N.G.R. dated 29.10.2018 and
Ext.P15-G.O.(MS)No.94/2009/G.Edn dated 28.03.2009
sought to be produced as additional evidence in I.A.No.1 of
2026 in W.A.No.734 of 2026 were not within the knowledge
of the petitioner in W.P.(C)No.4017 of 2018 or could not, after
the exercise of due diligence, be produced by the petitioner
at the time before the order dated 05.03.2026 in I.A.No.1 of
2026 in W.P.(C)No.4017 of 2018 was passed by the learned
Single Judge which order is under challenge in W.A.No.734
of 2026. Therefore, production of additional evidence in the
Appellate Court is not liable to be permitted in terms of Rule
27 under Order XLI of the Code of Civil Procedure.
5. It is submitted that in the Affidavit filed in support of
I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018 seeking
amendment of the pleadings in the writ petition it has been
specifically stated that the amendment petition dated
04.09.2021 was filed meaning thereby the amendment
petition dated 04.09.2021 was filed in the Registry of this
Hon’ble Court. However, case Status of W.P.(C)No.4017 of
2018 filed on 05.02.2018 and registered on 05.02.2018
retrieved from the official website of High Court does not
indicate the filing of the Amendment Petition dated
04.09.2021 in W.P.(C)No.4017 of 2018. A true copy of the
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W.A.No.734 of 2026 16Case Status of W.P(C)No. 4017 of 2018 retrieved from the
Official Website of High Court is produced herewith and
marked as Annexure I. In the Affidavit filed in support of
I.A.No.1 of 2026 it has been stated that “However, the
Petition seems to be misplaced.” The applicant/petitioner in
I.A.No.1 of 2026 in W.P(C)No.4017 of 2018 failed and
miserably failed to give the necessary particulars or the
circumstances in support of the pleading “seems to be
misplaced.” The lexicon meaning of the word “seem” is “give
the impression of being”; “be unable to do something despite
being tried.” Therefore, the averment regarding the missing
of the Amendment Petition dated 04.09.2021 is inconclusive,
indeterminate and there is no reason at all or justification for
relying on the sweeping statement “The petition seems to be
misplaced.”. The applicant/petitioner in I.A.No.2026 in
W.P.(C)No.4017 of 2018 has not given the particulars
regarding the steps taken to recover the I.A.No. 1 of 2026
stated to be “seems to be misplaced” up to the date of filing
I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018 on 16.01.2026.
The applicant/1st respondent in I.A.No.1 of 2026 in
W.A.No.734 of 2026 failed to explain the delay by showing
sufficient cause. The lapse of time and delay are most
material, and the Court, while finding absence of any
explanation to justify delay as well as negligence on the part
of the applicant/1st respondent in I.A.No.1 of 2026 in W.A.
No.734 of 2026. The Appellate Court is required to exercise
discretionary power adopting a ‘justice-oriented approach’,
and I.A.No.1 of 2026 filed in the intra-court appeal seeking
to receive additional document is only to be rejected.”
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W.A.No.734 of 2026 17
12. On 12.06.2026, we heard further arguments of the
learned Senior Counsel for the appellant-5th respondent, the
learned counsel for the 1st respondent-petitioner and also the
learned Senior Government Pleader for respondents 2 to 4.
13. The learned Senior Counsel for the appellant-5th
respondent contended that the reasoning of the learned Single
Judge in the impugned order dated 05.03.2026 in W.P.(C)No.4017
of 2018 cannot be sustained in law and therefore, the said order
warrants interference in this writ appeal. While passing the
impugned order, the learned Single Judge failed to exercise the
discretion to condone the delay in seeking an order to amend the
writ petition, in a reasonable and objective manner. The objections
raised by the appellant-5th respondent in the counter affidavit filed
in the application for amendment were not properly dealt with by
the learned Single Judge. The rejection of the objections raised in
the counter affidavit is without addressing the well settled legal
position that proof of sufficient cause is a condition precedent for
exercising discretion in the matter of condoning the inordinate and
huge delay in seeking amendment of the writ petition. Therefore,
the impugned order has caused irreparable injury to the appellant.
Similarly, the reliefs sought for in I.A.No.1 of 2026 filed in this writ
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W.A.No.734 of 2026 18
appeal, invoking the provisions under Order XLI Rule 27 of the Code
of Civil Procedure to accept an additional document, cannot be
allowed, for the objections stated in the counter affidavit dated
03.04.2026.
14. On the other hand, the learned counsel for the 1 st
respondent-petitioner would contend that since the reasoning of
the learned Single Judge in the impugned order dated 05.03.2026
in I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018 is neither perverse
nor patently illegal, no interference of this Court is warranted on
the said order, in this writ appeal. I.A.No.1 of 2026, invoking the
provisions under Order XLI Rule 27 of the Code of Civil Procedure
was filed to place on record the office copy of the application for
amendment dated 04.09.2021 stated to have been filed in
W.P.(C)No.4017 of 2018, in the facts and circumstances stated in
the affidavit filed in support of that application. The learned Senior
Government Pleader for the State and the official respondents
would submit that Exts.P14 and P15 orders were passed during the
pendency of W.P.(C)No.4017 of 2018 and the pendency of that writ
petition was noted in those orders.
15. The 1st respondent-petitioner filed W.P.(C)No.4017 of
2018, invoking the extraordinary jurisdiction of this Court under
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W.A.No.734 of 2026 19
Article 226 of the Constitution of India, seeking a writ of certiorari
to quash Ext.P7 order dated 21.08.2017 of the 1st respondent
State, to the extent it sanctioned the post of HSST (Jr.) English in
the school managed by the 4th respondent Manager, and a further
declaration that HSST (English) post is sanctionable in the said
school, on account of the workload in English, for the academic
years 2014-15 and 2015-16. In the writ petition, which was one
filed on 05.02.2018, the petitioner has also sought for other
consequential reliefs, including a writ of certiorari to quash Ext.P9
notification dated 28.08.2017 issued by the 4th respondent
Manager, in pursuance of Ext.P7 Government order dated
21.08.2017, to the extent it relates to HSST (Jr.) English
post/vacancy, and quash all further proceedings pursuant to the
said notification relating to HSST (Jr.) English post/vacancy,
including the selection, appointment and approval, if any, of the 5th
respondent as HSST (Jr.) English.
16. In W.P.(C)No.4017 of 2018, the 5th respondent-
appellant herein, who was appointed as HSST (Jr.) English with
effect from 01.01.2018, filed a counter affidavit dated 15.05.2018,
which was followed by an additional counter affidavit dated
04.03.2019. Along with the additional counter affidavit, the 5 th
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W.A.No.734 of 2026 20
respondent placed on record Exts.R5(j) order dated 16.10.2018 of
the 1st respondent State and Ext.R5(k) consequential order dated
29.10.2018 of the 3rd respondent Regional Director of Higher
Secondary Education, regarding the approval of the appointment
of the 5th respondent as HSST (Jr.) English, with effect from
01.01.2018.
17. By Ext.R5(j) Government order dated 16.10.2018, the
3rd respondent Regional Director of Higher Secondary Education
was directed to approve the appointment of the 5 th respondent as
HSST (Jr.) English in St. Thomas Higher Secondary School,
Kadambanad, managed by the 4th respondent Manager, if she
possesses the prescribed qualification; however, subject to the
result of the writ petition filed by the 1st respondent herein, which
is pending before this Court. In Ext.R5(j) order, it is stated that the
mere pendency of the writ petition filed by the 1st respondent
herein claiming by-transfer appointment as HSST (English) is not a
valid reason for delaying or denying approval for the appointment
of the 5th respondent as HSST (Jr.) English.
18. Based on the direction contained in Ext.R5(j)
Government order, the 3rd respondent Regional Director of Higher
Secondary Education issued Ext.R5(k) order dated 29.10.2018,
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W.A.No.734 of 2026 21
whereby approval has been granted to the appointment of the 5th
respondent as HSST (Jr.) English in St. Thomas Higher Secondary
School, Kadambanad, managed by the 4th respondent Manager,
with effect from 01.01.2018, subject to the result of the writ
petition filed by the 1st respondent herein, which is pending before
this Court. In Ext.R5(k) order, it is made clear that the approval
granted to the appointment of the 5th respondent is liable to be
reviewed, if found necessary, based on the final judgment to be
passed by this Court in W.P.(C)No.4017 of 2018 filed by the 1st
respondent herein.
19. On 16.01.2026, the petitioner, 1st respondent herein,
filed I.A.No.1 of 2026, invoking the provisions under Rule 155 of
the Rules of the High Court of Kerala, 1971, seeking an order to
amend W.P.(C)No.4017 of 2018, by incorporating additional
statement of facts, grounds and reliefs, to challenge Ext.R5(j)
Government order dated 16.10.2018 and Ext.R5(k) order dated
29.10.2018 issued by the 3rd respondent Regional Director of
Higher Secondary Education, which are marked as Exts.P13 and
P14 in the affidavit filed in support of that interlocutory application.
20. In paragraphs 3 and 4 of the affidavit filed in support of
I.A.No.1 of 2026, the petitioner, 1st respondent herein, explained
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the delay in filing the application seeking an order to amend in
W.P.(C)No.4017 of 2018, by incorporating additional statement of
facts, grounds and reliefs, to challenge Ext.P13 Government order
dated 16.10.2018 and Ext.P14 order dated 29.10.2018 issued by
the 3rd respondent Regional Director of Higher Secondary
Education, which we have noticed hereinbefore at paragraph 4.
21. In the counter affidavit dated 07.02.2026 filed in
I.A.No.1 of 2026, the 5th respondent-appellant herein opposed the
amendment of W.P.(C)No.4017 of 2018, as sought for in that
interlocutory application, by contending that the belated challenge
made against Ext.R5(j)/P13 Government order dated 16.10.2018
and Ext.R5(k)/P14 order dated 29.10.2018 issued by the 3rd
respondent Regional Director of Higher Secondary Education are
liable to be thrown out on the ground of delay, which we have
noticed hereinbefore at paragraph 5.
22. Chapter XI of the Rules of the High Court of Kerala,
1971, deals with proceedings under Articles 226, 227 and 228 of
the Constitution of India. As per Rule 155, no ground shall be relied
upon and no relief sought at the hearing except the grounds taken
and reliefs sought in the original petition and the accompanying
affidavit. As per the proviso to Rule 155, the Court may, at the
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hearing, allow the said petition and affidavit to be amended upon
such terms as to costs or otherwise as the Court thinks fit.
23. In Bharat Singh v. State of Haryana [(1988) 4 SCC
534], a decision relied on by the appellant, the Apex Court held
that, when a point which is ostensibly a point of law is required to
be substantiated by facts, the party raising the point, if he is the
writ petitioner, must plead and prove such facts by evidence which
must appear from the writ petition and if he is the respondent, from
the counter affidavit. If the facts are not pleaded or the evidence
in support of such facts is not annexed to the writ petition or to the
counter affidavit, as the case may be, the Court will not entertain
the point. The Apex Court held further that there is a distinction
between a pleading under the Code of Civil Procedure, 1908, and
a writ petition or a counter affidavit. While in a pleading, i.e., a
plaint or a written statement, the facts and not evidence are
required to be pleaded, in a writ petition or in the counter affidavit,
not only the facts but also the evidence in proof of such facts have
to be pleaded and annexed to it.
24. In Narmada Bachao Andolan v. State of Madhya
Pradesh [(2011) 7 SCC 639], a Three-Judge Bench of the Apex
Court held that, it is a settled proposition of law that a party has to
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plead its case and produce/adduce sufficient evidence to
substantiate the averments made in the petition and in case the
pleadings are not complete the court is under no obligation to
entertain the pleas. Pleadings and particulars are required to
enable the court to decide the rights of the parties in the trial. Thus,
the pleadings are more to help the court in narrowing the
controversy involved and to inform the parties concerned of the
question(s) in issue, so that the parties may adduce appropriate
evidence on the said issue. It is a settled legal proposition that, as
a rule, relief not founded on the pleadings should not be granted.
Therefore, a decision of a case cannot be based on grounds outside
the pleadings of the parties. The object and purpose of pleadings
and issues is to ensure that the litigants come to trial with all issues
clearly defined and to prevent cases from being expanded or
grounds being shifted during trial. If any factual or legal issue,
despite having merit, has not been raised by the parties, the court
should not decide the same, as the opposite counsel does not have
a fair opportunity to answer the line of reasoning adopted in that
regard. Such a judgment may be violative of the principles of
natural justice.
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25. Order VI Rule 17 of the Code of Civil Procedure, 1908
deals with amendment of pleadings. As per Order VI Rule 17, as
amended by Section 16(2)(b) of the Civil Procedure Code
(Amendment) Act, 2002, the court may at any stage of the
proceedings allow either party to alter or amend his pleadings in
such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose
of determining the real questions in controversy between the
parties. As per the proviso to Rule 17, no application for
amendment shall be allowed after the trial has commenced, unless
the court comes to the conclusion that in spite of due diligence, the
party could not have raised the matter before the commencement
of trial.
26. In Sayed Hussain Hydrose Thangal v. K.J. Paul and
others [2025 KHC OnLine 1348 : 2025:KER:98110], a Division
Bench of this Court, in which one among us [Anil K. Narendran, J.]
was a party, noticed that though the operative portion of Order VI
Rule 17 of the Code of Civil Procedure, 1908 enables amendment
at any stage of the proceedings, on such terms as may be just for
determining the real questions in controversy between the parties,
the proviso restricts its applicability to a stage before the
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commencement of trial, subject to the exception, when the party,
in spite of due diligence, could not have raised the matter before
the commencement of trial.
26.1. In Sayed Hussain Hydrose Thangal [2025 KHC
OnLine 1348], the Division Bench held that the rider ‘on such
terms as may be just’ in Order VI Rule 17 of the Code of Civil
Procedure makes it imperative that the courts, before granting the
prayer for amendment, should ensure that the proposed
amendment does not cause prejudice or injustice to the opposite
party. If the amendment is intended to cripple the opposite party
by depriving him of a valid defence, then it would be unjust and
hence impermissible. Likewise, a legal bar brought in the statute
book to confer finality and conclusiveness of decisions as a matter
of public policy, in the interest of the community at large, and to
protect individual interest from multiplicity of litigations, cannot be
circumvented by an amendment with a hidden objective of
rendering that provision nugatory.
26.2. In Sayed Hussain Hydrose Thangal [2025 KHC
OnLine 1348], the Division Bench held further that the law is
settled that the courts, generally, as a rule, decline to allow
amendments under Order VI Rule 17 of the Code of Civil Procedure,
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if a fresh suit on the amended claim would be barred by law on the
date of the application. But the bar in the above regard shall be a
factor to be taken into account in the exercise of discretion as to
whether the amendment should be ordered. It does not affect the
power of the court to order it, if that is required in the interests of
justice.
27. In Balwant Singh v. Jagdish Singh [(2010) 8 SCC
685], a decision relied on by the learned Senior Counsel for the
appellant, the Apex Court was dealing with a civil appeal in which
the issue relates to the orders passed in I.A.No.1 of 2010, an
interlocutory application filed invoking the provisions under Order
XXII Rule 3 of the Code of Civil Procedure, seeking an order to bring
the legal representatives of the deceased landlord as parties to the
proceedings and I.A.No.2 of 2010, another application filed
invoking the provisions under Order XXII Rule 9(2) and (3) of the
Code read with Section 5 of the Limitation Act, 1963 to set aside
the abatement, after condoning the delay of 778 days in filing the
application to set aside abatement. The Apex Court noticed that
since the delay in filing I.A.No.1 of 2010 is considerable, the onus
to show that sufficient cause exists for condonation of delay lies
upon the applicant.
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27.1. In Balwant Singh [(2010) 8 SCC 685], the Apex
Court noticed its earlier decision in P.K. Ramachandran v. State
of Kerala [(1997) 7 SCC 556], wherein the challenge was
against the order of the High Court condoning the delay of 565 days
in filing the first appeal by the State, without recording
any satisfaction that the explanation for the delay was either
reasonable or satisfactory, which is an essential prerequisite to
condonation of delay. In the context of the provisions under Section
5 of the Limitation Act and Order XXII Rule 9(2) of the Code of Civil
Procedure, the Apex Court observed that the law of limitation may
harshly affect a particular party, but it has to be applied with all its
rigour when the statute so prescribes, and the courts have no
power to extend the period of limitation on equitable grounds. On
the facts of the case at hand, the Apex Court found that the
discretion exercised by the High Court while condoning the delay
of 565 days in filing the first appeal was neither proper nor
judicious.
27.2. In Balwant Singh [(2010) 8 SCC 685], the Apex
Court held that the expression ‘sufficient cause’ in Section 5 of the
Limitation Act and Order XXII Rule 9(2) of the Code of Civil
Procedure implies the presence of legal and adequate reasons. The
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word ‘sufficient’ means adequate enough, as much as may be
necessary, to answer the purpose intended. It embraces no more
than that which provides a plentitude which, when done, suffices
to accomplish the purpose intended in the light of existing
circumstances and when viewed from the reasonable standard of
practical and cautious men. The sufficient cause should be such as
it would persuade the court, in exercise of its judicial discretion, to
treat the delay as an excusable one. These provisions give the
courts enough power and discretion to apply a law in a meaningful
manner, while assuring that the purpose of enacting such a law
does not stand frustrated.
27.3. In Balwant Singh [(2010) 8 SCC 685], in the context
of Section 5 of the Limitation Act and Order XXII Rule 9(2) of the
Code of Civil Procedure, the Apex Court held that the party should
show that besides acting bona fide, it had taken all possible steps
within its power and control and had approached the court without
any unnecessary delay. The test is whether or not a cause is
sufficient to see whether it could have been avoided by the party
by the exercise of due care and attention. The explained delay
should be clearly understood in contradistinction to inordinate
unexplained delay. Delay is just one of the ingredients which has
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to be considered by the court. In addition to this, the court must
also take into account the conduct of the parties, bona fide reasons
for condonation of delay and whether such delay could easily be
avoided by the applicant acting with normal care and caution. The
statutory provisions mandate that applications for condonation of
delay and applications belatedly filed beyond the prescribed period
of limitation for bringing the legal representatives on record should
be rejected unless sufficient cause is shown for condonation of
delay. The Larger Benches as well as Two-Judge Benches of the
Apex Court have consistently followed these principles and have
either allowed or declined to condone the delay in filing such
applications. Thus, it is the requirement of law that these
applications cannot be allowed as a matter of right and in a routine
manner. An applicant must essentially satisfy the above-stated
ingredients; then alone the court would be inclined to condone the
delay in filing such applications.
28. In Lanka Venkateswarlu v. State of A.P. [(2011) 4
SCC 363], another decision relied on by the learned Senior
Counsel for the Appellant, in the context of Section 5 of the
Limitation Act and Order XXII Rule 9(2) of the Code of Civil
Procedure, the Apex Court held that the concepts such as ‘liberal
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approach’, ‘justice oriented approach’, ‘substantial justice’ cannot
be employed to jettison the substantial law of limitation, especially
in cases where the court concludes that there is no justification for
the delay. Therefore, the approach adopted by the High Court tends
to show the absence of judicial balance and restraint, which a Judge
is required to maintain whilst adjudicating any lis between the
parties.
28.1. In Lanka Venkateswarlu [(2011) 4 SCC 363], the
Apex Court was dealing with civil appeals in which the issue relates
to the orders passed in an application filed invoking the provisions
under Order XXII Rule 3 of the Code of Civil Procedure, seeking an
order to bring the legal representatives of the deceased respondent
as parties to the proceedings in Appeal No.8 of 1985, and other
applications filed invoking the provisions under Order XXII Rule
9(2) and (3) and Order IX Rule 9 of the Code, and Section 5 of the
Limitation Act, 1963 to set aside the abatement, after condoning
the delay of 883 days in filing the application to set aside the
dismissal order dated 06.02.1998.
29. In U.P. Jal Nigam v. Jaswant Singh [(2006) 11 SCC
464], another decision relied on by the learned Senior Counsel for
the appellant, the Apex Court held that laches and delay have been
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considered to be an important factor in the exercise of the
discretionary relief under Article 226 of the Constitution of India.
In the said decision, the question that came up for consideration
before the Apex Court was that, when a person who is not vigilant
about his rights and acquiesces with the situation, can his writ
petition be heard after a couple of years on the ground that the
same relief should be granted to him as was granted to a person
similarly situated who was vigilant about his rights and challenged
his retirement, which was said to be made on attaining the age of
58 years.
29.1. In Jaswant Singh [(2006) 11 SCC 464], the Apex
Court was dealing with a case in which some of the employees of
Uttar Pradesh Jal Nigam earlier filed writ petitions before the High
Court of Judicature at Allahabad challenging their retirement on
attaining the age of 58 years, whereas the State Government
employees were allowed to continue up to the age of 60 years.
Those writ petitions were dismissed, and the employees challenged
the judgment of the High Court before the Apex Court by filing
SLPs. Civil Appeal No.7840 of 2002 and connected matters arising
out of those SLPs were disposed of by the Apex Court by the
decision in Harwindra Kumar v. Chief Engineer, Karmik
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[(2005) 13 SCC 300], holding that so long as Regulation 31 of
the Regulations is not amended, 60 years which is the age of
superannuation of Government servants employed under the State
of Uttar Pradesh shall apply to the employees of the Nigam.
However, it would be open to the Nigam, with the previous
approval of the State Government, to make a suitable amendment
in Regulation 31 and alter the service conditions of employees of
the Nigam, including their age of superannuation. If it is so done,
the same shall be prospective. The Apex Court set aside the
judgment of the High Court dismissing the writ petitions as well as
the orders passed by the Nigam directing that the appellants of the
civil appeals and the petitioners of the writ petitions would
superannuate upon completion of the age of 58 years, and directed
that in case the employees have been allowed to continue up to
the age of 60 years, by virtue of some interim order, no recovery
shall be made from them, but in case, however, they have not been
allowed to continue after completing the age of 58 years, by virtue
of erroneous decision taken by the Nigam for no fault of theirs, they
would be entitled to payment of salary for the remaining period up
to the age of 60 years, which must be paid to them within a period
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of three months from the date of receipt of copy of the judgment
by the Nigam.
29.2. In Jaswant Singh [(2006) 11 SCC 464], the Apex
Court noticed that during the pendency of Civil Appeal No.7840 of
2002 and connected matters, and after the disposal of the same by
the decision in Harwindra Kumar [(2005) 13 SCC 300], a spate
of writ petitions followed in the High Court by the employees of the
Nigam who had retired long back. Some of the petitions were filed
by the employees who retired on attaining the age of 58 years long
back. However, some were lucky to get interim orders allowing
them to continue in service. Several writ petitions were filed in the
High Court in 2005, on various dates, after the decision in
Harwindra Kumar [(2005) 13 SCC 300], and some between
2002 and 2005. All those writ petitions were disposed of in the light
of the decision in Harwindra Kumar [(2005) 13 SCC 300], and
relief was given to them for continuing in service up to the age of
60 years. Various judgments of the High Court from time to time
in those writ petitions were under challenge before the Apex Court
in SLPs filed by the Nigam.
29.3. In Jaswant Singh [(2006) 11 SCC 464], the
question considered by the Apex Court was whether the employees
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who did not wake up to challenge their retirement and accepted
the same, collected their post-retirement benefits, can be given the
relief in the light of the subsequent decision in Harwindra
Kumar [(2005) 13 SCC 300]. After taking note of the law on the
point and the statement of law summarised in Halsbury’s Laws of
England, para 911, page 395, the Apex Court held that the
respondents are guilty since they have acquiesced by accepting the
retirement and did not challenge the same in time. If they had been
vigilant enough, they could have filed writ petitions as others did
in the matter. Therefore, whenever it appears that the claimants
lost time or whiled it away and did not rise to the occasion in time
for filing the writ petitions, then in such cases, the court should be
very slow in granting the relief to the incumbent. Therefore, the
Apex Court was not inclined to grant any relief to the persons who
have approached the court after their retirement. It was ordered
that only those persons who have filed the writ petitions, when they
were in service, or who have obtained an interim order for their
retirement, should be allowed to stand to benefit and not others.
30. In Mool Chandra v. Union of India [(2025) 1 SCC
625], another decision relied on by the learned Senior Counsel for
the appellant, the Apex Court noticed its earlier decision in
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Commissioner, Nagar Parishad, Bhilwara v. Labour Court,
Bhilwara [(2009) 3 SCC 525] that, while deciding an application
for condonation of delay under Section 5 of the Limitation Act, the
High Court ought not to have gone into the merits of the appeal,
and would have only seen whether the appellant has shown
sufficient cause for condoning the delay in filing the appeal before
it.
30.1. In Mool Chandra [(2025) 1 SCC 625], the Apex
Court held that if negligence can be attributed to the appellant,
then necessarily the delay which has not been condoned by the
Tribunal and affirmed by the High Court deserves to be accepted.
However, if no fault can be laid at the doors of the appellant, and
cause shown is sufficient, then both the Tribunal and the High Court
were in error in not adopting a ‘liberal approach’ or ‘justice-oriented
approach’ to condone the delay. In the said decision, the Apex
Court noticed paragraph 6 of its earlier decision in Municipal
Council, Ahmednagar v. Shah Hyder Beig [(2000) 2 SCC 48],
which reads thus;
“6. Incidentally, this point of delay and laches was also raised
before the High Court and on this score the High Court,
relying upon the decision in N.L. Abhyankar v. Union of
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503] observed that it is not an inflexible rule that whenever
there is delay, the Court must and necessarily refuse to
entertain the petition filed after a period of three years or
more, which is the normal period of limitation for filing a suit.
The Bombay High Court in N.L. Abhyankar [1994 SCC
OnLine Bom 574] stated that the question is one of
discretion to be followed in the facts and circumstances of
each case and further stated: (SCC OnLine Bom para 22)
’22. … The real test for sound exercise of discretion by
the High Court in this regard is not the physical running
of time as such, but the test is whether by reason of
delay, there is such negligence on the part of the
petitioner, so as to infer that he has given up his claim
or whether before the petitioner has moved the writ
court, the rights of the third parties have come into
being which should not be allowed to be disturbed
unless there is reasonable explanation for the delay.’ “
(underline supplied)
31. In Shivamma (Dead) by Lrs. v. Karnataka Housing
Board and others [2025 SCC OnLine SC 1969], another
decision relied on by the learned Senior Counsel for the appellant,
the Apex Court was dealing with a civil appeal in which the issue
relates to the orders passed by the High Court of Karnataka in an
application filed under Section 5 of the Limitation Act, whereby the
High Court condoned the delay of 3966 days in preferring the
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second appeal against the judgment and order passed by the First
Appellate Court, arising from the judgment and decree passed by
the Trial Court.
31.1. In Shivamma (Dead) by Lrs. [2025 SCC OnLine SC
1969], the Apex Court held that the question of limitation is not
merely a technical consideration. The rules of limitation are based
on the principles of sound public policy and principles of equity. The
Court should not keep the ‘Sword of Damocles’ hanging over the
head of the respondent for an indefinite period of time to be
determined at the whims and fancies of the appellants. The Apex
Court set aside the impugned order of the High Court, on a finding
that the High Court has erroneously condoned a massive delay of
3966 days on account of certain lapses at the administrative levels
and of there being no follow-ups in the proceedings, along with
finding certain merits in the case of the respondent No.1 against
the maintainability of the suit of the appellant, and that of the relief
molded by the First Appellate Court. Such grounds are nowhere
near being ‘sufficient cause’ as per Section 5 of the Limitation Act.
32. As held by a Division Bench of this Court in Sayed
Hussain Hydrose Thangal [2025 KHC OnLine 1348], the
provisions of Order VI Rule 17 of the Code of Civil Procedure enable
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amendment at any stage of the proceedings, on such terms as may
be just for determining the real questions in controversy between
the parties. However, the proviso to Rule 17 restricts its
applicability to a stage before the commencement of trial, subject
to the exception, when the party, in spite of due diligence, could
not have raised the matter before the commencement of trial. The
rider ‘on such terms as may be just’ in Order VI Rule 17 of the Code
makes it imperative that the courts, before granting the prayer for
amendment, should ensure that the proposed amendment does not
cause prejudice or injustice to the opposite party. If the
amendment is intended to cripple the opposite party by depriving
him of a valid defence, then it would be unjust and hence
impermissible. The law is settled that, generally as a rule, the
courts decline to allow amendments under Order VI Rule 17 of the
Code, if a fresh suit on the amended claim would be barred by law
on the date of the application. But the bar in the above regard shall
be a factor to be taken into account in the exercise of discretion as
to whether the amendment should be ordered. It does not affect
the power of the court to order it, if that is required in the interests
of justice.
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33. As held by the Apex Court in Balwant Singh [(2010)
8 SCC 685], the expression ‘sufficient cause’ in Section 5 of the
Limitation Act and Order XXII Rule 9(2) of the Code of Civil
Procedure implies the presence of legal and adequate reasons. The
word ‘sufficient’ means adequate, as much as may be necessary,
to answer the purpose intended, which embraces no more than
that which provides a plentitude which, when done, suffices to
accomplish the purpose intended in the light of existing
circumstances and when viewed from the reasonable standard of
practical and cautious men. The sufficient cause should be such as
it would persuade the court, in exercise of its judicial discretion, to
treat the delay as an excusable one. As held by the Apex Court in
Lanka Venkateswarlu [(2011) 4 SCC 363], the concepts such
as ‘liberal approach’, ‘justice-oriented approach’, ‘substantial
justice’ cannot be employed to jettison the substantial law of
limitation, as contained in Section 5 of the Limitation Act and Order
XXII Rule 9(2) of the Code, especially in cases where the court
concludes that there is no justification for the delay.
34. A reading of the provisions under Order VI Rule 17 of
the Code of Civil Procedure as well as the provisions under Rule
155 of the Rules of the High Court of Kerala, which we have
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referred to hereinbefore at paragraphs 25 and 22 respectively,
would make it explicitly clear that the concept of ‘sufficient cause’
as contained in Section 5 of the Limitation Act and Order XXII Rule
9(2) of the Code is a consideration alien to Order VI Rule 17 of the
Code as well as Rule 155 of the Rules of the High Court of Kerala.
In cases in which amendment of pleadings is governed by the
provisions under Order VI Rule 17 of the Code, the proviso to Rule
17 restricts its applicability to a stage before the commencement
of trial, subject to the exception contained therein, i.e., when the
party, in spite of due diligence, could not have raised the matter
before the commencement of trial. Similarly, the proviso to Rule
155 of the Rules of the High Court of Kerala enables this Court, at
the hearing, to allow an application for amendment in an original
petition or writ petition filed under Articles 226, Article 227 or
Article 228 of the Constitution of India and the accompanying
affidavit to raise new grounds or reliefs, upon such terms as to
costs or otherwise, as the Court thinks fit.
35. Section 141 of the Code of Civil Procedure deals with
miscellaneous proceedings. As per Section 141, the procedure
provided in the Code in regard to suits shall be followed, as far as
it can be made applicable, in all proceedings in any court of civil
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jurisdiction. As per the Explanation to Section 141, inserted by the
Code of Civil Procedure (Amendment) Act, 1976, with effect from
01.02.1977, in Section 141, the expression ‘proceedings’ includes
proceedings under Order IX, but does not include any proceeding
under Article 226 of the Constitution.
36. In Puran Singh v. State of Punjab [(1996) 2 SCC
205], the Apex Court noticed that, on a plain reading, Section 141
of the Code of Civil Procedure provides that the procedure provided
in the said Code in regard to suits shall be followed ‘as far as it can
be made applicable, in all proceedings’. In other words, it is open
to make the procedure provided in the said Code in regard to suits
applicable to any other proceeding in any court of civil jurisdiction.
The Explanation which was added is more or less in the nature of
a proviso, saying that the expression ‘proceedings’ shall not include
any proceeding under Article 226 of the Constitution of India. The
necessary corollary thereof shall be that it shall be open to make
applicable the procedure provided in the Code to any proceeding in
any court of civil jurisdiction except to proceedings under Article
226 of the Constitution.
36.1. In Puran Singh [(1996) 2 SCC 205], the Apex Court
held that, when the Constitution of India has vested extraordinary
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power in the High Court under Articles 226 and 227 to issue any
order, writ or direction and the power of superintendence over all
courts and tribunals throughout the territories in relation to which
such High Court is exercising jurisdiction, the procedure for
exercising such power and jurisdiction have to be traced and found
in Articles 226 and 227 itself. No useful purpose will be served by
limiting the power of the High Court by procedural provisions
prescribed in the Code of Civil Procedure. Of course, on many
questions, the provisions and procedures prescribed under the
Code can be taken as a guide when exercising the power to grant
relief to persons who have invoked the jurisdiction of the High
Court. It need not be impressed that different provisions and
procedures under the Code are based on well-recognised principles
for exercise of discretionary power, and they are reasonable and
rational. But at the same time, it cannot be disputed that many
procedures prescribed in the Code are responsible for delaying the
delivery of justice and causing delay in securing the remedy
available to a person who pursues such remedies. The High Court
should be left to adopt its own procedure for granting relief to the
persons concerned. The High Court is expected to adopt a
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procedure which can be held to be not only reasonable but also
expeditious.
37. Though, as per the Explanation to Section 141 of the
Code of Civil Procedure, inserted by the Code of Civil Procedure
(Amendment) Act, 1976, the expression ‘proceedings’ in Section
141 does not include any proceeding under Article 226 of the
Constitution, in view of the observation made by the Apex Court in
paragraph 11 of the decision in Puran Singh v. State of Punjab
[(1996) 2 SCC 205], on many questions, the provisions and
procedures prescribed under the Code, which are based on well-
recognised principles for exercise of discretionary power, and are
reasonable and rational, can be taken as a guide when exercising
the power to grant relief to persons who have invoked the
jurisdiction of the High Court. In that view of the matter, the
procedure and the principles for exercise of discretionary power
under Order VI Rule 17 of the Code can be taken as a guide when
the High Court exercises the power to grant relief to persons who
have invoked the provisions under Rule 155 of the Rules of High
Court of Kerala seeking an order for amending an original petition
or writ petition filed under Articles 226, Article 227 or Article 228
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W.A.No.734 of 2026 45
of the Constitution of India and the accompanying affidavit to raise
new grounds or reliefs.
38. In the instant case, as already noticed hereinbefore,
during the pendency of W.P.(C)No.4017 of 2018, which was one
filed on 05.02.2018, the 1st respondent State by Ext.R5(j) order
dated 16.10.2018, directed the 3rd respondent Regional Director of
Higher Secondary Education to approve the appointment of the 5th
respondent as HSST (Jr.) English in St. Thomas Higher Secondary
School, Kadambanad, managed by the 4th respondent Manager, if
she possesses the prescribed qualification; however, subject to the
result of the said writ petition. Based on the direction contained in
Ext.R5(j) Government order, the 3rd respondent Regional Director
of Higher Secondary Education issued Ext.R5(k) order dated
29.10.2018, whereby approval has been granted to the
appointment of the 5th respondent as HSST (Jr.) English, with effect
from 01.01.2018, subject to the result of the said writ petition.
39. In Ext.R5(j) Government order, it is stated that the mere
pendency of W.P.(C)No.4017 of 2018 filed by the 1st respondent
herein claiming by-transfer appointment as HSST (English) is not a
valid reason for delaying or denying approval for the appointment
of the 5th respondent as HSST (Jr.) English. In Ext.R5(k)
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W.A.No.734 of 2026 46
consequential order of the 3rd respondent Regional Director of
Higher Secondary Education, it is made clear that the approval
granted to the appointment of the 5th respondent is liable to be
reviewed, if found necessary, based on the final judgment to be
passed by this Court in the said writ petition.
40. The specific stand taken by the petitioner, the 1 st
respondent herein, in the affidavit filed in support of I.A.No.1 of
2026, i.e., the application for amendment filed in W.P.(C)No. 4017
of 2018 is that, when there is a reference to the said writ petition
in Ext.R5(j) order dated 16.10.2018, the 1st respondent State
ought to have issued notice to her before passing such an order.
Similarly, before issuing Ext.R5(k) order dated 29.10.2018 of the
3rd respondent Regional Director of Higher Secondary Education no
notice was issued to her. We notice that a copy of Exts.R5(j) and
R5(k) orders are not even marked to the petitioner.
41. Though, the 5th respondent filed an additional counter
affidavit dated 04.03.2019 in W.P.(C)No.4017 of 2018, producing
therewith Exts.R5(j) Government order dated 16.10.2018 and
Ext.R5(k) consequential order dated 29.10.2018 passed by the 3rd
respondent Regional Director of Higher Secondary Education, the
petitioner filed I.A.No.1 of 2026, only on 16.01.2026, invoking the
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W.A.No.734 of 2026 47
provisions under Rule 155 of the Rules of the High Court of Kerala,
seeking an order to amend the said writ petition, by incorporating
additional statement of facts, grounds and reliefs, in order to
challenge Exts.R5(j) and R5(k) orders, which are marked as
Exts.P13 and P14 in the affidavit filed in support of that
interlocutory application.
42. The delay in filing such an application seeking an order
to amend W.P.(C)No.4017 of 2018 has been explained in
paragraphs 3 and 4 of the affidavit filed by the petitioner in support
of I.A.No.1 of 2026, which we have noticed hereinbefore at
paragraph 4. The objections raised in the counter affidavit dated
07.02.2026 filed by the 5th respondent in I.A.No.1 of 2026,
contending that a belated challenge made against Exts.R5(j)/ P13
and R5(k)/P14 orders is liable to be thrown out on the ground of
delay, are noticed hereinbefore at paragraph 5.
43. As already held hereinbefore at paragraph 34, the
concept of ‘sufficient cause’ as contained in Section 5 of the
Limitation Act and Order XXII Rule 9(2) of the Code is a
consideration alien to Order VI Rule 17 of the Code as well as Rule
155 of the Rules of the High Court of Kerala. The proviso to Rule
155 of the Rules of the High Court of Kerala enables this Court, at
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W.A.No.734 of 2026 48
the hearing, to allow an application for amendment in a writ
petition filed under Articles 226 of the Constitution of India and the
accompanying affidavit to raise new grounds or reliefs, upon such
terms as to costs or otherwise, as the Court thinks fit. As already
held hereinbefore at paragraph 37, in view of the observation made
by the Apex Court in paragraph 11 of the decision in Puran Singh
[(1996) 2 SCC 205], the procedure and the principles for exercise
of discretionary power under Order VI Rule 17 of the Code can be
taken as a guide when the High Court exercises the power to grant
relief to persons who have invoked the provisions under Rule 155
of the Rules of High Court of Kerala seeking an order to amend an
original petition or writ petition filed under Articles 226, Article 227
or Article 228 of the Constitution of India and the accompanying
affidavit to raise new grounds or reliefs.
44. In the instant case, as already noticed hereinbefore, one
of the reliefs sought for in W.P.(C)No.4017 of 2018 is a writ of
certiorari to quash Ext.P9 notification dated 28.08.2017 issued by
the 4th respondent Manager, in pursuance of Ext.P7 Government
order dated 21.08.2017, to the extent it relates to HSST (Jr.)
English post/vacancy, and quash all further proceedings pursuant
to the said notification relating to HSST (Jr.) English post/vacancy,
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W.A.No.734 of 2026 49
including the selection, appointment and approval, if any, of the 5th
respondent as HSST (Jr.) English. Moreover, the approval for the
appointment of the 5th respondent granted in Ext.R5(j)/P13
Government order dated 16.10.2018 and Ext.R5(k)/P14 order
dated 29.10.2018 of the 3rd respondent Regional Director of Higher
Secondary Education, is subject to the result of W.P.(C)No.4017 of
2018. In Ext.R5(k)/P14 order, it is made clear that the approval
granted to that appointment is liable to be reviewed, if found
necessary, based on the final judgment to be passed by this Court
in the said writ petition.
45. The application for amendment, i.e., I.A.No.1 of 2026,
is one filed by the petitioner during the pendency of W.P.(C)No.
4017 of 2018. When such an amendment is permissible at any
stage of the proceedings in W.P.(C)No.4017 of 2018, the
amendment sought for in I.A.No.1 of 2026 cannot be turned down
on the ground that the petitioner failed to substantiate her case
regarding the filing of an earlier application for amendment, in the
year 2021, especially when all further proceedings pursuant to
Ext.P9 notification dated 28.08.2017 issued by the 4th respondent
Manager, relating to HSST (Jr.) English post/vacancy, including the
selection, appointment and approval, if any, of the 5th respondent
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W.A.No.734 of 2026 50
as HSST (Jr.) English, is already under challenge in W.P.(C)No. 4017
of 2018, by seeking a writ of certiorari. In addition to that, approval
for the appointment of the 5th respondent granted by
Exts.R5(j)/P13 and R5(k)/P14 orders is subject to the result of
W.P.(C)No.4017 of 2018. In that view of the matter, it has become
unnecessary for this Court to go into the rival contentions in
relation to I.A.No.1 of 2026 filed by the 1st respondent-petitioner
in this writ appeal, invoking the provisions under Order XLI Rule 27
of the Code of Civil Procedure, to place on record the office copy of
the application for amendment dated 04.09.2021 stated to have
been filed in W.P.(C)No.4017 of 2018. Therefore, I.A.No.1 of 2026
filed by the 1st respondent-petitioner in this writ appeal for the said
purpose is closed.
46. In the impugned order dated 05.03.2026 in I.A.No.1 of
2026 in W.P.(C)No.4017 of 2018, the learned Single Judge noticed
that merely allowing the amendment application no prejudice
would be caused to the 5th respondent since Ext.P14 order itself
states that the approval of the appointment is subject to the result
of the said writ petition.
47. When Ext.P9 notification dated 28.08.2017 issued by
the 4th respondent Manager, in pursuance of Ext.P7 Government
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W.A.No.734 of 2026 51
order dated 21.08.2017, to the extent it relates to HSST (Jr.)
English post/vacancy, and all further proceedings pursuant to the
said notification relating to HSST (Jr.) English post/vacancy,
including the selection, appointment and approval, if any, of the 5th
respondent as HSST (Jr.) English, is already under challenge in
W.P.(C)No.4017 of 2018, by seeking a writ of certiorari, and
approval for the appointment of the 5th respondent granted by
Ext.R5(j)/P13 Government order dated 16.10.2018 and Ext.
R5(k)/P14 order dated 29.10.2018 of the 3rd respondent Regional
Director of Higher Secondary Education is subject to the result of
the said writ petition; the amendments as sought for in I.A.No.1 of
2026, for determining the real questions in controversy between
the parties, which do not cause any prejudice or injustice to the 5th
respondent cannot be turned down as a belated challenge made
against those orders. Therefore, none of the contentions in the
counter affidavit dated 07.02.2026 filed by the 5th respondent in
I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018, which we have noticed
hereinbefore at paragraph 5, raise a valid challenge against the
amendment sought for in I.A.No.1 of 2026.
48. In the above circumstances, we find no grounds to
interfere with the impugned order dated 05.03.2026 of the learned
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W.A.No.734 of 2026 52
Single Judge in I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018,
whereby the learned Single Judge allowed the said application filed
by the 1st respondent-petitioner seeking amendment of the
pleadings in W.P.(C)No.4017 of 2018, as stated in that
interlocutory application.
In the result, this writ appeal fails, and the same is
accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
AV
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W.A.No.734 of 2026 53
APPENDIX OF WA NO. 734 OF 2026
RESPONDENT EXHIBITS
Annexure R1(a) COPY OF THE AMENDMENT PETITION DATED
04.09.2021 IN WP(C)NO4017/2018 EXCLUDING
THE EXHIBITS
PETITIONER ANNEXURES
ANNEXURE I A TRUE COPY OF THE CASE STATUS OF W.P(C)
NO. 4017 OF 2018 RETRIEVED FROM THE
OFFICIAL WEBSITE OF HIGH COURT OF KERALA.
