IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 34044 of 2005(C) -------------------------- AS.58/2001 of I ADDL.SUB COURT, KOZHIKODE .................... PETITIONERS: ------------------- 1. K.C. KAMALAM, W/O. K.C. VELAYUDHAN, RESIDING AT FEROKE AMSOM AND DESOM OF KOZHIKODE TALUK. 2. K.C. MADHU, S/O. K.C. VELAYUDHAN, RESIDING AT FEROKE AMSOM AND DESOM, KOZHIKODE TALUK. 3. K.C. NAVANEETH, S/O. K.C. VELAYUDHAN, RESIDING AT FEROKE AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: --------------------- 1. MANAKKAT FATHIMA, W/O. BEERANKOYA, FEROKE AMSOM, NALLUR DESOM OF KOZHIKODE TALUK. 2. ABDUAHIMAN, S/O. BEERANKOYA, FEROKE AMSOM, NALLUR DESOM OF KOZHIKODE TALUK. 3. MUHAMMED BASHEER, S/O. BEERANKOYA, FEROKE AMSOM, NALLUR DESOM OF KOZHIKODE TALUK. 4. SUHARA, D/O. BEERANKOYA, FEROKE AMSOM, NALLUR DESOM OF KOZHIKODE TALUK. 5. SHAREEFA, D/O BEERANKOYA, FEROKE AMSOM, NALLUR DESOM OF KOZHIKODE TALUK. 6. SUBAIDA, D/O. BEERANKOYA, FEROKE AMSOM, NALLUR DESOM OF KOZHIKODE TALUK. 7. JAMEELA, D/O. BEERANKOYA, FEROKE AMSOM, NALLUR DESOM OF KOZHIKODE TALUK. 8. RAIHANA (MINOR), AGED 15 YEARS, REPRESENTED BY GUARDIAN, MOTHER FATHIMA, THE 1ST RESPONDENT. 9. FEROKE PANCHAYATH REPRESENTED BY ITS EXECUTIVE OFFICER, FEROKE. BY ADV. SRI.BABU S. NAIR FOR R9 SRI.T.H.ABDUL LATIFF FOR R1 - 5, 7, 8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS’ EXHIBITS:- EXT.P1:- TRUE COPY OF THE AFFIDAVIT DATED 23.7.2001 FILED IN SUPPORT OF THE I.A. 3057/2001 EXT.P2:- TRUE COPY OF THE COUNTER STATEMENT DATED 11.9.2001 FILED BY THE PETITIONERS HEREIN IN EXT.P1 APPLICATION. EXT.P3:- TRUE COPY OF THE ORDER DATED 26.10.2005 PASSED BY THE FIRST ADDITIONAL SUB COURT, KOZHIKODE IN I.A. 3057/2001 IN A.S. 58/2001 RESPONDENTS’ EXHIBITS:- NIL OKB/- //TRUE COPY// P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 34044 OF 2005 ------------------------------------------ Dated this the 30th day of July, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India to quash Ext.P3 order passed by Sub Court, Kozhikode, in A.S.58 of 2001 whereunder I.A.3057 of 2001 was allowed. 2. Learned counsel appearing for petitioners and respondents were heard. 3. A.S.58 of 2001 was filed challenging dismissal of the suit instituted by respondents. I.A.3057 of 2001 was filed by respondents for amendment of the plaint. It was allowed by the learned Sub Judge under Ext.P3 order as follows:- “Considering the facts and the circumstances of the case and in the interest of justice I allowed the petition on cost of Rs.250/-.” 4. Learned Sub Judge considered the application for amendment in the appeal without considering the grounds for dismissal of the suit or the objections raised by the respondents in the application. WP(C)34044/05 2 5. True, it is settled law that appellate Court is competent to permit amendment of the pleadings. But appellate Court must consider the question of delay and why it was not moved before the trial Court. Learned Sub Judge omitted to take note of the principles laid down by the Apex Court in Ishwardas v. State of Madhya Pradesh (AIR 1979 SC 551). Question whether such an amendment can be allowed or not is to be considered only at the time of hearing of the appeals, as considered by this Court in Ahamedkutty v. Sub Judge (1990 (1) KLT 716). Otherwise the decision properly rendered by the trial Court will be jeopardized causing hardship and injury to the opposite party. 6. In such circumstances, learned Sub Judge should have considered the application only along with hearing of the appeal and if at that stage Court finds that it is to be allowed, learned Sub Judge can allow the application. Ext.P3 order passed by the learned Sub Judge shows that the application was allowed without considering either the law or the settled principles. In such circumstances, writ petition is allowed. WP(C)34044/05 3 Ext.P3 order is quashed. Learned Sub Judge is directed to hear I.A. 3057 of 2001 along with A.S.58 of 2001 and pass appropriate orders in accordance with law. M. SASIDHARAN NAMBIAR, JUDGE Okb/-