IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 WP(C).No. 23887 of 2008(R) ---------------------------------------- (O.S.NO.108/02 OF SUB COURT, KOTTARAKARA) PETITIONER: -------------------- N.SIVADASAN, SIVA SADANAM, AGASTYACODU MURI, ANCHAL. BY ADV. SRI.ALEXANDER GEORGE RESPONDENTS: ------------------------ 1. BHASUMATHI AMMA, KUNNUMPURATHU VEEDU, THAZHAMEL MURI, ANCHAL. 2. B.SYAMALAKUMARI, SINDHU BHAVANAM, CHEEPUVAYAL, ANCHAL. 3. SINDHUKUMARI, SINDHU BHAVANAM, CHEEPUVAYAL, ANCHAL. 4. K.R.MANU, SINDHU BHAVANAM, CHEEPUVAYAL, ANCHAL. 5. K.R.BINU, SINDHU BHAVANAM, CHEEPUVAYAL, ANCHAL. ADV. SRI.PRAKASH P.GEORGE FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.23887/2008 R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT OS.NO.108/02 OF THE SUB COURT, KOTTARAKARA. EXT.P2: COPY OF THE IA 587/08 IN O.S.108/02 ON THE FILE OF THE SUB COURT, KOTTARAKARA. EXT.P3: COPY OF THE OBJECTION IA 587/08 IN O.S.108/02 ON THE FILE OF THE SUB COURT, KOTTARAKARA. EXT.P4: COPY OF THE ORDER DTD. 29/05/08 IN I.A.587/08 IN O.S.108/02 ON THE FILE OF THE SUB COURT, KOTTARAKARA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.23887 of 2008 ------------------------------- Dated this the 25th August, 2008. J U D G M E N T Petitioner is the plaintiff and respondents, the defendants, in O.S.No.108 of 2002, on the file of Sub Court, Kottarakara. This petition is filed under Article 227 of the Constitution of India challenging Ext.P4 order passed in I.A.No.587 of 2008, an application filed under Rule 17 of Order VI to amend the plaint. The suit is for realisation of Rs.2,26,500/=, being the principal amount of Rs.2 lakhs with interest. The suit as filed is for realisation of that amount based on cheque allegedly issued by deceased Raveendran. Respondents are his widow and children. The cheque is dated 12.5.2001. Ravindran admittedly died on 22.9.2001. 2. After the evidence was recorded and posted the suit for arguments, Ext.P2 application was filed for amendment W.P.(C) No.23887 of 2008 2 of the plaint. The amendment sought for are deletion of the statement at the beginning of the plaint that suit is for realisation of the amount due under the cheque. The other amendment sought for is to add the cause of action of the date on which the amount was borrowed by Raveendran. Ext.P2 objection was filed contending that suit is based on the cheque and if the amendment is allowed, it would alter the nature and character of the suit. It was also contended that when examined, petitioner specifically admitted that suit is based on the cheque and in such circumstances, after evidence was closed, plaint cannot be allowed to be amended changing the suit to one for realisation of the amount due under the original transaction. Under Ext.P4 order, learned Sub Judge dismissed the application. 2. The argument of the learned counsel appearing for the petitioner is that learned Sub Judge should have allowed the application, as no prejudice would be caused to the respondents. It was pointed out that by the amendment, the character and the nature of the suit is not changed, and suit still W.P.(C) No.23887 of 2008 3 remains for realisation of the amount due, as borrowed from the petitioner by deceased Raveendran. 3. Learned counsel appearing for the respondents argued that in the written statement, it was contended that cheque was not presented or dishonoured and when the cheque was not even presented before the bank, the suit based on realisation of the amount under the cheque is not maintainable. Learned counsel also argued that if the amendment application is allowed, it would alter the nature and character of the suit, as suit is now based on the cheque and if allowed, it will be based on the original transaction. 4. On hearing learned counsel, I cannot agree with the view taken by learned Sub Judge or the submission canvassed by learned counsel for the respondent that if the amendment is allowed, it would alter the nature and character of the suit. The suit is for realisation of the amount due from Raveendran. What was contended in the plaint itself is that W.P.(C) No.23887 of 2008 4 Raveendran had borrowed the amount on 20.4.2001, and the cheque was issued drawn, on Federal Bank Limited, Anchal Branch, towards the repayment of the amount. Raveendran subsequently died and petitioner is entitled to realise the amount from the assets of the deceased Raveendran left with the respondents. 5. Learned counsel appearing for the petitioner also made available certified copy of the deposition of PW.1. It is seen from the deposition of PW.1 that evidence was adduced with regard to the original transaction itself and he was elaborately cross examined. In such circumstances, by allowing the plaint to be amended, seeking a decree on the original transaction, I cannot agree with the submission that nature and character of the suit will be changed. In such circumstances, learned Sub Judge should have allowed the application. True, there is delay in filing the application. But delay could be compensated by cost. W.P.(C) No.23887 of 2008 5 6. In such circumstances, Ext.P4 order is set aside. I.A.No.587 of 2007 will stand allowed and plaint allowed to be amended, if the petitioner pays a cost of Rs.1000/= to the respondent before the trial court, within 10 days from today, failing which the amendment application will stand dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.