IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 WP(C).No. 23804 of 2010(O) -------------------------- OS.207/2009 of PRINCIPAL SUB COURT,PARAVUR .................... PETITIONER(S): -------------------------- DR.SARA UMMA, AGED 52, D/O.SAIDALI, NEDUNGATTUKUDI VEETTIL,OKKAL KARA, CHELAMATTOM VILLAGE, KUNNATHUNADU TALUK, REPRESENTED BY HER POWER OF ATTORNEY HOLDER K.M.SALIM, AGED 45, S/O.K.P.MUHAMMAD KUNJU KEEPATH HOUSE, VATTAKKATTUPADY,PERUMBAVOOR 683 542. BY ADVS. SRI.P.N.RAMAKRISHNAN NAIR, SRI.P.VISWANATHAN. RESPONDENT(S): ---------------------------- 1. K.D.BABY, AGED 59,S/O.KOLENCHERRY DEVASSY, SREEMOOLANAGARAM KARA, CHOWARA VILLAGE, ALUVA TALUK, KODUNGALLOOR P.O., PIN 683 580 2. AKBAR, AGED ABOVE 39, S/O.HYDROSE, KATTAKATH VEETTIL, MALA PALLIPPURAM DESOM, POYYA VILLAGE, KODUNGALLOOR TALUK, KODUNGALLOOR P.O., PIN 680 669 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ------------------------- W.P (C) No.23804 of 2010 -------------------------- Dated this the 30th day of July, 2010 J U D G M E N T Defendant No.2 in O.S.No.207 of 2007 of the court of learned Sub Judge, North Paravur is the petitioner before me. Respondent No.1/plaintiff sued for a declaration that the sale deed he executed in favour of petitioner/defendant No.2 was merely intended as a security for a loan and for consequential injunction. Petitioner filed written statement claiming that there is an assignment of the property in his favour and also raised a counter claim for a decree for prohibitory injunction to restrain respondent No.1 from trespassing into the suit property. Later, respondent No.1 filed Ext.P3, application to amend the plaint to state that the annual income he gets from the suit property is only Rs.40,000/- and not Rs.4,00,000/- as originally stated in the plaint. He claimed that it was by an inadvertent mistake that the annual income was stated to be Rs.4,00,000/- instead of Rs.40,000/-. Petitioner preferred Ext.P4, objection but the learned sub Judge has allowed the application by Ext.P5, order. That order is under challenge. There is an alternative prayer that in case challenge to Ext.P5 is not upheld petitioner may be given opportunity to file additional written statement in answer to the amended plaint. Learned counsel contends that Ext.P5, order W.P.C.No.23804 of 2010 2 is illegal. It is also pointed out that immediately after Ext.P5, order respondent No.1 carried out amendment to the plaint, paid balance court fee and the case is included for trial in the list on 08-10-2010 without giving petitioner an opportunity to file additional written statement. 2. I have gone through Exts.P3 to P5. I also referred to the extent of amendment brought into plaint vide Ext.P5, oder. Admittedly trial has not commenced. It was within the power of the court to allow amendment prayed for. Learned Sub Judge was satisfied that it was an inadvertent mistake that crept in the plaint which was required to be amended as requested by respondent No.1. I find little reason to interfere with Ext.P5, order. 3. Necessarily, when the plaint is amended petitioner and other contesting defendants if any should get an opportunity to file additional written statement in answer to the amended plaint. Learned counsel states that no such opportunity was given to the petitioner. In case no such opportunity was given to the petitioner, necessarily he must get that before trial commenced. Hence learned Sub Judge is directed to give petitioner opportunity to file additional written statement. W.P.C.No.23804 of 2010 3 Resultantly this writ petition is disposed of in the following lines: While holding that there is no reason to interfere with Ext.P5, order, petitioner is permitted to file additional written statement to the amended plaint (in case it has not already been done). Petitioner shall file additional written statement if any, within three weeks from this day and on compliance, learned Sub Judge shall receive the additional written statement and pass appropriate consequential orders if any. THOMAS P JOSEPH JUDGE Sbna/