IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 OP(C).No. 133 of 2011(O) ------------------------------------ OS.182/2006 of PRINCIPAL SUB COURT,ALAPPUZHA .................... PETITIONERS/DEFENDANTS ------------------------------------------ 1. V.RAMACHANDRA REDDIYAR, S/O.VEERIAH REDDIYAR,DHANAMS,CURZON ROAD, KOTTAKKAKOM,KOLLAM.(REPRESENTED BY POWER OF ATTORNEY HOLDER R.BALAGURU,AGED 41 YEARS,RESIDING AT SHANTI NIVAS,KOTTAMUKKU,KOLLAM-13). 2. R.ANANTHAKUMAR,S/O.RAMACHANDRA REDDIYAR, DHANAMS,CURZON ROAD,KOTTAKKAKOM,KOLLAM. REPRESENTED BY POWER OF ATTORNEY HOLDER R.BALAGURU AGED 41 YEARS,RESIDING AT SHANTI NIVAS, KOTTAMUKKU,KOLLAM-13. 3. R.VEERESH KUMAR,S/O.RAMACHANDRA REDDIYAR DHANAMS,CURZON ROAD,KOTTAKKAKOM,KOLLAM. (RERPESENTED BY POWER OF ATTORNEY HOLDER R.BALAGURU, AGED 41 YEARS,RESIDING AT SHANTI NIVAS, KOTTAMUKKU,KOLLAM-13. 4. R.DHANALAKSHY AMMAL,W/O.V.RAMACHANDRA REDDIYAR,DHANAMS,CURZON ROAD,KOTTAKKAKOM, KOLLAM.(REPRESENTED BY POWER OF ATTORNEY HOLDER R.BALAGURU,AGED 41 YEARS,RESIDING AT SHANTI NIVAS, KOTTAMUKKU,KOLLAM-13. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN tss OP(C0 NO.133/2011 RESPONDENT(S): PLAINTIFF ------------------------------------------ S.M.VENKITANARAYANAN, S/O.MUTHUSWAMI REDDIYAR,S.M.V.GARDENS, ANDAMUKKOM,KOLLAM-691508. R1 BY ADVS. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE SRI.K.N.SASIDHARAN NAIR THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.133/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OSS. 182/2006 ON THE FILE OF SUB COURT, ALAPPUZHA. P2:- COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS/DEFENDANTS IN OS. 182/2006. P3:- COPY OF THE APPLICATION FOR AMENDMENT AS IA,. 1713/2010. P4:- COPY OF THE OBJECTION IN IOA. 1713/2010. P5:- COPY OF THE ORDER IN IA. 1713/2010 IN OS. 182/2006 DTD. 30.11.2010. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.133 of 2011 --------------------------------------- Dated this 23rd day of November, 2011 JUDGMENT Petitioners allegedly executed an agreement for sale in favour of the respondent on 28.07.2003 agreeing to convey their right, title, interest and possession of 37.05Ares of land to the respondent for `.Two Crores and allegedly received `.1,05,00,000/- by way of advance sale consideration. Alleging that petitioners failed to perform their part of the contract, respondent sued petitioners in O.S.No.182 of 2006 before the learned Sub Judge, Alappuzha for a decree for specific performance of that agreement for sale. Petitioners filed written statement on 01.01.2007 contending that there was no agreement for sale in favour of the respondent, they used to borrow money from respondent who is their relative on various occasions on the strength of cheques, demand promissory notes and other security executed in favour of respondent and thus, respondent being the lender and petitioners being borrowers, the latter was able to extort signature of petitioners in the agreement prepared by him, the agreement in question is got executed in that way and it is therefore vitiated by fraud, misrepresentation, O.P(C).No.133 of 2011 -: 2 :- undue influence and want of consideration. Petitioners contended that there was no intention as referred to in the agreement to transfer property. In paragraph 6 of the written statement petitioners contended that two agreements dated 28.07.2003 and 14.07.2004 are not signed by the respondent, the said agreements are signed only by petitioners and that too, under vitiating circumstances above stated. They therefore prayed for a dismissal of the suit. 2. When the case came up for trial in the list petitioners filed Ext.P3, application - I.A.No.1713 of 2010 for amendment of the written statement to contend that relief of specific performance being discretionary, cannot be granted to the respondent who has come up with uncleaned hands suppressing all material facts and further that in page 11 of the (alleged) agreement for sale dated 28.07.2003 petitioners 2 to 4 have not signed and in the last portion of the last page of the said agreement, respondent has forged the signatures of petitioners and thus the document is concocted. The application was resisted by the respondent on various grounds referring to the entire proceeding that started from the day respondent filed the suit. Learned Sub Judge was not impressed by the application O.P(C).No.133 of 2011 -: 3 :- and dismissed the same by Ext.P5, order which is under challenge. 3. Learned counsel for petitioners contends that what is sought to be incorporated by way of amendment as paragraph 33(a) is only an explanation to what is already pleaded in paragraph 26 of the written statement. It is contended that the property is worth Crores and that having regard to the circumstances petitioners may be permitted to amend the written statement. According to the learned counsel, no question of resiling from any admission made in the written statement originally filed is involved and at any rate, it is within the right of petitioners to explain away the admission if any, made in the written statement. Reliance is placed on the decision in Usha Balashaheb Swami Vs. Kiran Appaso Swami (2007(5) SCC 602). 4. Per contra, it is argued by learned counsel for respondent that the application lacks bonafides and instead, various proceeding taken by the respondent would show that the attempt is to somehow prolong and protract trial and disposal of the case. According to the learned counsel, the amendment is only to facilitate sending the document to the expert for opinion O.P(C).No.133 of 2011 -: 4 :- and thus prolong the proceeding. Learned counsel has referred me to the various proceeding petitioners have taken in the suit and contended that if at all petitioners wanted any amendment to be made as in Ext.P3, application they could have done it well in advance, about 5 years back, when the case was about to be taken up for trial in the list. 5. There could be no dispute on the principle regarding grant of permission to amend pleadings that is required to be granted to adjudicate the real controversy between the parties provided, it does not result in altering the nature and character of the suit. But, it is also a matter which the Court has to consider whether the request for amendment lacks bonafides or the attempt is to delay the proceeding. In the above background I shall consider whether the request for amendment could be allowed and whether learned Sub Judge was right in disallowing the prayer. 6. I referred to the contentions raised by petitioners in the written statement as to how the disputed document came into force. In the course of the money transaction respondent - money lender being in an influential position was able to extort signature of petitioners in the disputed document and that the O.P(C).No.133 of 2011 -: 5 :- same is vitiated by fraud, misrepresentation, undue influence and want of consideration. In other words, going by the contention raised by petitioners in the written statement there is no dispute regarding the signature of petitioners wherever it appears in the disputed document. Now the attempt is to incorporate in the written statement a plea that page 11 of the disputed agreement is not signed by petitioners 2 to 4 and in the last portion of the last page, none of petitioners have signed and their signatures are forged by the respondent. 7. So far as the contention regarding all the petitioners not signing at page 11 of the agreement is concerned, that is a matter which could be seen by a mere look at the document if it is so. Petitioners have raised a contention that the agreement is unilateral since it is signed only by petitioners and not by the respondent, it is not acceptable and hence the suit is not maintainable. Petitioners had a preliminary issue raised on that plea, issue was considered and they invited an adverse finding. The case was thereafter posted for trial in the list on 07.02.2008. At that stage, petitioners filed W.P(C).No.3913 of 2008 claiming that a certified copy of the finding that the suit is maintainable was not issued to them. As per judgment passed in that writ O.P(C).No.133 of 2011 -: 6 :- petition the trial was deferred and later certified copy of the finding was delivered to the petitioners. Thereon they filed W.P (C).No.10315 of 2008 challenging the said finding. That writ petition was dismissed on 27.03.2008. But, this court directed that the trial will stand deferred till 07.04.2008. Thereafter the case was posted for trial in the list. Petitioners challenged the judgment of this Court dated 27.03.2008 in S.L.P.No.9168 of 2008 and got a dismissal of the SLP. That was followed by petitioners filing R.P.No.560 of 2008 to review judgment dated 27.03.2008 in W.P(C).No.10315 of 2008. That review petition was dismissed on 11.07.2008. Trial was again deferred as per order of this Court till 16.08.2008. The case was again taken on 30.09.2008. In the meantime, petitioners filed application for review of the order on S.L.P.No.9168 of 2008 and that review petition was dismissed. The case was then posted in the list on 03.11.2008. Petitioners filed I.A.No.2343 of 2008 to remove the case from the list and though learned Sub Judge did not allow that request, the case was adjourned to 05.11.2008. On that day, in the absence of petitioners an ex parte decree was passed in favour of the respondent. Later came an application to set aside the ex parte decree which in the absence of petitioners was O.P(C).No.133 of 2011 -: 7 :- dismissed for default. That was followed by I.A.No.2200 of 2009 for restoration of the application to set aside the ex parte decree which was dismissed for default. The said applications were ultimately allowed and the ex parte decree was set aside. The case was again posted for trial in the list. At that stage, petitioners have come with Ext.P3, application for amendment of the written statement. 8. I am unable to understand the plea sought to be taken up in paragraph 33(a) in Ext.P3, application as explanatory to what is pleaded in paragraph 26 of the written statement. Going by the written statement, contention taken up through out is one of the agreement being vitiated by fraud, misrepresentation, undue influence and want of consideration on the premise that respondent being in a dominant position, was able to extort signature of petitioners in the agreement prepared by the respondent. What is sought to be incorporated by amendment is a different plea that the signatures appear in the last page of the agreement are forged by respondent. That cannot be treated as an explanation to the contention already taken by petitioners in the written statement. O.P(C).No.133 of 2011 -: 8 :- 9. It is contended by petitioners that they had no occasion or opportunity to pursue the original of the agreement for sale before Ext.P3, application was preferred and that caused the delay. In response, it is pointed out by learned counsel for respondent that in W.P(C).No.10315 of 2008 petitioners had produced and marked as Ext.P1, a photocopy of the original agreement for sale. Learned counsel has given me a copy of W.P (C).No.10315 of 2008 and I find that a photocopy of the agreement dated 28.07.2003 was appended to the said writ petition. I have gone through that document and find that it contains altogether, 12 pages. It is seen to be a photocopy of the original. When confronted with the above, learned counsel for petitioners contended that the instruction given to the learned counsel is that the said photocopy of the agreement was given by counsel for respondent/plaintiff in the trial court. Assuming so, petitioners had with them a photocopy of the original of the said agreement as early as on 23.03.2008 when W.P(C).No.10315 of 2008 is seen filed. Therefore, the contention that they got a photocopy of the original agreement only recently as it was in safe custody of the court below and hence there was no occasions to seek amendment of the written statement as now sought, O.P(C).No.133 of 2011 -: 9 :- cannot be accepted. 10. It is relevant to note that in spite of having a photocopy of the original of the agreement with them even as early as in March 2008, petitioners pursued their contention in the written statement regarding the agreement being vitiated by fraud, misrepresentation, undue influence and want of consideration. During that time, petitioners did not think it necessary to seek an amendment of the written statement. According to the learned counsel, there was change of counsel in the trial court and the counsel newly engaged found out the alleged forgery of signatures and wanted the written statement to be amended. I am inclined to think that pleadings cannot be allowed to be amended based on the change of engagement. 11. Viewed in that line I am inclined to think that the request for amendment of the written statement is not bonafide. In that view of the matter, prayer for amendment cannot be allowed. Learned Sub Judge was right in disallowing Ext.P3, application. This original petition is dismissed. (THOMAS P. JOSEPH, JUDGE) Sbna/-