IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 WP(C).No.621 of 2009 (Y) ------------------------------- OS.901/2003 of PRL.M.C.-II, KOZHIKODE .................... PETITIONER: --------------- VISWANATHAN, S/O.APPU, AGED 48 YEARS BANGLAVU PARAMBIL, PANTHEERANKAVU AMSOM, KODAL DESOM, KOZHIKODE TALUK. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT: ---------------- BALAKRISHNAN, 60 YEARS, S/O.APPU, BANGLAVU PARAMBIL, PALLIYIL, MANNAKADAVATH, PANTHEERANKAVU AMSOM, KODAL DESOM, KOZHIKODE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.621 of 2009 ------------------------------------------------ Dated this the 6th day of January, 2009 JUDGMENT Heard the counsel for the petitioner. 2. This Writ Petition is filed by the defendant in O.S.901/03 on the file of the Munsiff's Court, Kozhikode assailing Ext.P4 order whereby the court below dismissed the petition filed by the petitioner/defendant for amendment of the written statement. 3. It is submitted that the suit was filed on 06/12/03 by the respondent/plaintiff restraining the petitioner/defendant from forcibly evicting him; that in the said suit a written statement was filed by the petitioner contending that the respondent/plaintiff vacated the house on 02/12/03 viz. even before institution of the suit and that the amendment sought for is to change the date mentioned in the written statement as the date on which W. P. C. No.621 of 2009 -2- respondent vacated the house, as 07/12/03 in the place of 02/12/03 as already contended. 4. It is submitted that the respondent/ plaintiff has also got a case that the police took him from the scheduled house on 07/12/03. The court below has disallowed the prayer for amendment of written statement observing that on going through the averments in the affidavit it can be seen that the proposed amendment will change the contention of the defendant in the written statement and will enable him to set up a new defence. If as contended by the petitioner/defendant initially in his written statement, 02/12/03 was the date on which the respondent/defendant vacated the building he could not have been taken into custody by the police on 07/12/03 from the said house and the suit filed on 06/12/03 will itself be a false case. On the other hand, if the petitioner is permitted to W. P. C. No.621 of 2009 -3- amend the written statement altering the date to 07/12/03, certainly the suit filed on 06/12/03 will be maintainable and the date mentioned in the plaint as the date on which he was taken by the police into custody will gain importance. 5. It is contended by the counsel for the petitioner that it is by an amendment of the plaint that the plaintiff incorporated a case that he was taken into custody by the police on 07/12/03 by the police. Whatever that be, the question for consideration is as to whether by altering the date the nature of the contentions set up by the petitioner/defendant will be altered. The suit was filed admittedly on 06/12/03. When the defendant contends that even before filing of the suit the plaintiff had vacated the house on 02/12/03 to alter that date as 07/12/03 will mean that the petitioner/defendant is altering his W. P. C. No.621 of 2009 -4- contentions stating that the plaintiff vacated the building the very next day of institution of the suit. The date mentioned originally in the written statement in the circumstances of the case cannot be one made by inadvertence. Hence, the dismissal of the amendment application filed by the petitioner/defendant by the court below cannot be faulted. 6. This Writ Petition is devoid of merit and is dismissed. K.P.BALACHANDRAN, JUDGE kns/-