IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 WP(C).No. 7830 of 2008(F) ------------------------- OPELE.158/2005 of PRL.M.C.,KOZHIKODE-II .................... PETITIONER: ------------ K.GANGADHARAN @ SUNDARAN, S/O.CHINNAKUTTAN NAIR, KAMBURATH VEEDU, POST FEROKE, KOZHIKODE DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A RESPONDENTS: ------------- P.RAMACHANDRAN NAIR, S/O.CHINNAN NAIR, 'SAPARYA', NALLUR, POST FEROKE, KOZHIKODE DISTRICT. BY ADV. SRI.P.V.KUNHIKRISHNAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.7830/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE O.P.(ELECTION) NO.158/2005, MUNSIFF COURT, KOZHIKODE, DATED 25.10.2005. EXT.P2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN O.P. (ELECTION) 158/2005 MUNSIFF COURT, KOZHIKODE, DATED 7.1.2006. EXT.P3 TRUE COPY OF I.A.812/2008 IN O.P. (ELECTION) 158/2005, MUNSIFF COURT, KOZHIKODE, DATED 15.2.2008 EXT.P4 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER IN EXT.P3 APPLICATION DATED 18.2.2008 EXT.P5 TRUE COPY OF THE ORDER OF THE MUNSIFF OF KOZHIKODE IN I.A.812/2008 IN O.P.(ELECTION) 158/2005 DATED 20.2.08 RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.7830 of 2008 ------------------------------- Dated this the 23rd May, 2008. J U D G M E N T Petitioner is challenging Ext.P5 order passed by the Principal Munsiff II, Kozhikode, in I.A.No.812/2008 in Election O.P.No.158/2005, where under application filed under Order VI Rule 17 of Code of Civil Procedure, to amend the Election Petition was allowed. 2. Learned Senior Counsel appearing for the petitioner as well as the counsel appearing for the first respondent were heard. As rightly pointed out by the learned senior counsel, I.A.No.812/2008 was filed after the oral evidence was recorded. Still learned Munsiff did not consider proviso to Order VI Rule 17 of Code of Civil Procedure, while passing Ext.P5 order. The proviso to Rule 17 reads as follows:- “Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial.” W.P.(C) No.7830/2008 2 3. As the learned Munsiff has not considered the proviso and it is mandatory that the Court shall consider the proviso before allowing an application filed under Order VI Rule 17 of Code of Civil Procedure, and as the petition was filed after trial has commenced, Ext.P5 order is quashed. The learned Munsiff is directed to pass fresh orders in I.A.No.812/2008, after hearing the parties, considering the proviso to Rule 17 of Order VI of Code of Civil Procedure. Writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.