IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 FAO.No. 142 of 2003() --------------------- AS.257/2002 of II ADDL.DISTRICT COURT,ERNAKULAM .................... APPELLANT/RESPONDENT/PLAINTIFF. ------------------------------------------------------ JOY JOSEPH, S/O.JOSEPH, THULUSSERIL HOUSE, MUTTUCHIRA, KOTTAYAM DISTRICT,. BY ADV. SRI.K.V.JAYACHANDRAN SRI.RAJU V.MATHEW SMT.K.B.SMITHA RESPONDENT(S)/APPELLANTS/DEFENDANTS. ---------------------------------------------------------------- 1. ANITHAKUMARI, W/O.AJAYAKUMARAN, 32/1858B, AMMU, SURABHI ROAD, KOCHI-24, EDAPPALLY SOUTH VILLAGE. 2. P.N.AJAYAKUMARAN, 32/1858B, AMMU, SURABHI ROAD, KOCHI-24, EDAPPALLY SOUTH VILLAGE. ADV. SRI.VARGHESE C.KURIAKOSE SRI.JACOB SEBASTIAN SRI.PRAVEEN K. JOY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON 02.06.2009 PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 142 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2009. JUDGMENT Bhavadasan, J, The appellant challenges the order of remand dated 9.7.2003 in A.S. 257 of 2002 by the District Court, Ernakulam. 2. O.S. 311 of 1998 before the Sub Court, Ernakulam is a suit for money. The defendants are husband and wife. The allegation was that the second defendant wanted a loan of Rs.1,00,000/- and that was paid by the plaintiff on 28.6.1995. Inspite of repeated demands, the amount was not repaid. Defendants resisted the suit by pointing out that the allegations were false and they have not availed of loan from the plaintiff. 3. After taking evidence, the Sub Court, Ernakulam decreed the suit. That was carried in appeal by the defendants. The appellate court found that the act of the lower court in not allowing the amendment of the written statement and receiving the documents produced by the defendants had caused considerable prejudice to them and in fairness the defendants should be given an opportunity to amend the written statement and have the suit retried on merits. Accordingly F.A.O.142/2003. 2 the appeal was allowed and the suit was remanded. 4. Learned counsel appearing for the appellant pointed out that the reasons given by the appellate court to remand the case to the trial court is not justifiable. It is pointed out that in the plaint it was clearly stated that the amount had been paid to the defendants as loan and it has never been repaid. According to the learned counsel, even assuming that an amendment of the written statement was necessary, the defendants had several opportunities and they did not avail of the same. It was only after the suit was listed on the second occasion that they had come forward with the amendment application. According to learned counsel there was no bonafides in the act of the defendants. 5. It must be said that though the arguments may look very attractive, they are without any foundation whatsoever. In the plaint, all that was stated was that the plaintiff had paid a sum of rs.1,00,000/- on 28.6.1995. It is true that the plaint had also disclosed that both the plaintiff as well as the first defendant had accounts with the State Bank of Hyderabad, Vennala Branch. As already stated, the defendants had denied receipt of the amount. When the plaintiff was examined as P.W.1 on 19.11.2001 he deposed that an amount of Rs.1,00,000/- was deposited in the account belonging to the first defendant in State Bank of Hyderabad, F.A.O.142/2003. 3 Vennala Branch. He had also produced few other documents to prove his claim. 6. It appears that the defendants had kept themselves away from court and an ex-parte decree was passed on 19.11.2001. The defendants soon thereafter filed an interlocutory application for setting aside ex-parte decree. They had also pointed out that in fact they had filed an interlocutory application for adjournment of the suit on 19.11.2001. That petition for adjournment was dismissed by pointing out that the suit had already been disposed of. Whatever that be, since the defendants had filed an application for setting aside the decree within thirty days, the court below allowed the same on payment of costs. 7. The suit was listed for trial on 5.8.2002. In the meanwhile, the defendants had filed I.A. 3021 of 2002 seeking amendment of the written statement. They wanted to incorporate the pleadings to the effect that the claim of the plaintiff at the time of evidence that he had deposited Rs.1,00,000/- in the account of the first defendant as loan demanded by the defendants was not correct and that the said sum was paid in respect of another transaction. It was also pointed out that the claim of the plaintiff that he had deposited the amount in the account of the first respondent was for the first time stated in evidence and that it had taken the defendant by F.A.O.142/2003. 4 surprise. Therefore the defendants sought that unless they refuted the claim of the plaintiff, they may be in jeopardy. 8. It appears that I.A. 3021 of 2002 was dismissed on two grounds. They are (i) that there was considerable delay in filing the amendment application and (ii) that at the time of giving evidence, the plaintiff had spoken about the deposit and the defendants were aware of the same. 9. As already stated, the trial court decreed the suit. It is interesting to note that the trial court observed in its judgment that the claim of the defendants that the deposit of Rs.1,00,000/- in the account of the first defendant related to some other transaction is conspicuously absent in the written statement and there was no pleading to that effect and therefore the evidence in that regard need not be looked into. 10. In the appeal, the appellate court found that the plaint was silent regarding the deposit of Rs.1,00,000/- in the account of the first defendant and therefore the defendants were justified in not questioning the deposit of Rs.1,00,000/- in the account at the time of filing the written statement initially. The lower court was also of the opinion that if the same standard as applied to the defendants was applied in the case of the plaintiff also there was no pleading in the plaint to the effect that the amount had F.A.O.142/2003. 5 been deposited in the account of the first defendant. It was these facts, which had persuaded the court below to come to the conclusion that considerable prejudice has been caused to the defendants by the statement made by the plaintiff at the time of evidence and it was necessary for the defendants to refute the same. The lower court also observed that there was no prejudice caused to the plaintiff by the allowing amendment of the written statement and the same was just and necessary for a proper disposal of the suit. 11. It could possibly be said that there was some delay in filing the amendment application, but by no stretch of imagination it could be said that it was unnecessary. One may recollect here that at the time of disposal of the suit the trial court had observed that the documents produced and the evidence given by the parties regarding Rs.1,00,000/- deposited in the account of the first defendant did not have foundation in the written statement and hence it cannot be taken into consideration. What the defendants had feared had transpired. As rightly observed by the appellate court, there was no justification in disallowing the application for amendment of the writ petition filed by the defendants. It cannot be disputed that the amendment was absolutely necessary in view of the fact that it was only at the time of evidence that the plaintiff had spoken about F.A.O.142/2003. 6 the deposit. It is well settled that the courts are liberal as far as amendment of written statement is concerned. It is also trite that if it is felt that amendment is necessary for determining the real issues involved in the suit, the amendment should be granted. Viewed from any angle it cannot be said that the finding of the lower appellate court that prejudice has been caused to the defendants on the disallowing of the application for amendment of the written statement cannot be faulted. It cannot be said that the order of remand is either illegal or irregular. The result is that this appeal is without merit and accordingly dismissed. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.