IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 WP(C).No. 34078 of 2007(F) ------------------------------------- PETITIONER: ----------------- BEENA S., PULARI, MANJADIMOODU, CHIRAYINKIZH P.O. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: ------------------------- 1. L.SATHI,PUTHUMANA VEEDU KOTTAPPURAM VILLAGE, KOLLAM DISTRICT PIN 673 307. 2. D.DAKSHAYANI, W/O. LATE VELUKUTTY PLAVILA VEEDU, VADASSERIKONAM, VARKALA, PIN 695 141. 3. THE BRANCH MANAGER, CANARA BANK, MAITHANAM BRANCH, TEMPLE ROAD VARKALA, PIN 695 141. 4. P.S.VIJAYALAL,PADMA VILASOM KOONAYIL, PARAVOOR P.O.,POOTHAKKULAM VILLAGE. PIN 691 301. BY ADV. SRI.V.VENUGOPALAN NAIR --- R1 ADV. SRI.M.R.GOPALAKRISHNAN NAIR-- R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 34078/2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE OBJECTION DT. 6/3/06 IN OP SUC NO. 9/05 BY THE PETITIONER. EXT.P2. COPY OF THE ADMENDMENT APPLICATION NUMBERED AS I 1053/2006 IN OP SUC. NO. 9/05 BY THE PETITIONER. EXT.P3. COPY OF THE ORDER IN IA NO. 1053/2007 IN OP SUC NO. 9/05 BY THE MUNSIFF COURT PARAVOOR. RESPONDENT'S EXHIBITS NIL. True copy tga M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 34078 OF 2007 = = = = = = = = = = = = = = = Dated this the 29th day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the Munsiff-Magistrate, Paravur in I.A.1053/06 in O.P.9/05. It was an application for amendment that has been disallowed. The brief facts are, the petitioner in the O.P. has filed the original petition with a prayer to issue a succession certificate in the name of the petitioner claiming to be the wife of one Harindra das. The 4th respondent therein namely Beena S. Pulari filed a original counter statement whereby she has expressly admitted about the marriage and it is pleaded that the deceased Harindra das did contract another marriage with the mother of her namely Sathya bhama during his life time. It is averred that the marital tie of the deceased Harindra das with that of the petitioner in the O.P. got severed long back. So the specific and categoric plea in the written statement is to the effect that though the said W.P.C 34078 OF 2007 -:2:- Harindra das had married the petitioner it had been severed and thereafter there was a marriage between Harindra das and Sathya bhama and therefore they are the persons entitled to get the legal rights of the deceased Harindra das. 2. Now, the 4th respondent has filed an application for amendment to introduce a totally new case to the effect that the petitioner in the O.P. had never been married by the said Harindra das. The learned counsel appearing for the writ petitioner has placed two decisions of the Apex Court before me, i.e., Baldev Singh v. Manohar Singh (2006 (6) SCC 498). In that decision the Apex Court held that the Courts have to be liberal in the case of amendment of the pleadings and that inconsistent defences can be raised in the written statement although the same may not be permissible in case of the plaint. Therefore the learned counsel would contend that the amendment is liable to be allowed. 3. A perusal of paragraph 13 of the said judgment would reveal that the Court in that facts and circumstances of the case held that; W.P.C 34078 OF 2007 -:3:- “After going through the written statement and the application for amendment of the written statement in depth, we do not find any such admission of the appellants which was sought to be withdrawn by way of amending the written statement.” 4. The other decision relied upon is the decision reported in Akshaya Restaurant v. P. Anjanappa (1995 Suppl.(2) SCC 303). It was a case where there was a definite stand taken by the defendant in the written statement that the respondent had entered into an agreement of sale and by amendment they sought to incorporate that it entered into an agreement for development of the land for the mutual benefit of the parties. So it was a case where the agreement entered into was admitted by the parties but the purpose for which the agreement entered was sought to be changed. The Apex Court held that in such cases amendment can be allowed. 5. Now, let us see whether that is a situation in the present case. The filing of the O.P. was only for the purpose of obtaining a succession certificate claiming to be the wife of W.P.C 34078 OF 2007 -:4:- the deceased Harindra das. With both her eyes opened the 4th respondent filed a counter statement admitting that Harindra das has previously married the petitioner and took up the contention that the marriage has been severed long back and thereafter he has married the mother of the 4th respondent. Now by the proposed amendment an admission which goes to the root of the matter which is the point that will decide the fate of the case is attempted to be changed. 6. It is a well settled principle that when there is an application for amendment of the pleadings there must be bonafide in that petition. A party cannot be allowed to be detract at every stage of the proceedings and substitute it with a new pleadings when it is found that it is inconvenient or she will not be in a position to prove the same. So, I am of the view that if this amendment is allowed it will amount to gross injustice to the other side. It cannot be allowed and therefore I find no ground to interfere with the order rendered by the Court below. Therefore the writ petition lacks merit and it is dismissed. W.P.C 34078 OF 2007 -:5:- I am informed that 2nd respondent is no more and since the presence of the legal representatives is not necessary for the reason that I am dismissing this writ petition I direct the petitioner to take steps for impleading her legal representatives before the Court below where the original matter is pending. M.N. KRISHNAN, JUDGE. ul/-