IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 WP(C).No. 26038 of 2009(O) -------------------------- OS.171/2006 of SUB COURT,KOTTARAKKARA .................... PETITIONER(S): --------------- ABDUL MANAF, AGED 37 YEARS, S/O.IBRAHIMKUTTY, THENNATTUPUNNAVILA VEEDU, MALAPEROOR MURI, KOTTAKKAL VILLAGE, KOTTARAKKARA. BY ADV. SRI.D.SAJEEV RESPONDENT(S): --------------- 1. D.N.LOLA, THIRUTHIRAVILA VEEDU, KOTTAPPURAMCHERI, PARAVOOR VILLAGE, KOLLAM TALUK. 2. SREELA, D/O.D.N.LOLA, THIRUTHIRAVILA VEEDU, KOTTAPPURAMCHERI, PARAVOOR VILLAGE, KOLLAM TALUK. 3. SREENU, THIRUTHIRAVILA VEEDU, KOTTAPURAMCHERI, PARAVOOR VILLAGE, KOLLAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.26038 OF 2009 (O) ----------------------------------- Dated this the 16th day of September, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records which may leads to the passing of Ext.P5 order and quash the same as illegal, arbitrary and one passed without any application of mind by issuing a writ of certiorari or other appropriate writ, direction or order. ii. to issue a writ of mandamus or other appropriate writ, direction or order directing the Sub Court, Kottarakkara to consider and pass orders in Ext.P3 application for amendment afresh after taking note of the specific pleading in Ext.P1 plaint and Ext.P2 written statement filed by the defendants in the suit. 2. Petitioner is the plaintiff in O.S.No.171 of 2006 on the file of the Sub Court, Kottarakkara. Suit is one for WPC.26038/09 2 recovery of refund of the advance paid on an agreement of sale, and the respondents are the defendants. The respondents/defendants, in their written statement, among other contentions, contended that they were ready and willing to perform the agreement of sale. Petitioner/plaintiff thereupon moved an application to amend the plaint to have an additional relief for specific performance of the agreement of sale. The application was opposed to by the respondents/defendants, filing objections. The learned Sub Judge, after hearing both sides, dismissed the amendment application vide Ext.P5 order. Propriety and correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and, hence, it is dispensed with. By prosecuting the suit claim for refund of advance paid alone, WPC.26038/09 3 petitioner/plaintiff had refuted the relief of specific performance as an equitable relief. The proposed amendment, no doubt, will change the character of the suit. What he seeks by the proposed amendment is enforcement of the agreement of sale, which had already been given up by seeking the refund of the advance paid, and that alone. So much so, there is no impropriety or illegality in the Ext.P5 order passed by the court below declining the amendment sought for. There is no merit in the writ petition, and, it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp