IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 OP(C).NO. 2061 OF 2011(O) ---------------------------------------- AGAINST THE ORDER DATED 21/06/2011 IN IA 1225/2011 IN OS.144/2009 OF SUB COURT, MANJERI .................... PETITIONER:(PETITIONER BEFORE THE COURT BELOW) ---------------------------------------------------------------------------------- K.T.MUJEEB RAHMAN,S/O.K.T.HASSAN HAJI, K.T.HOUSE,PUTHUPADAM,AIKKARAPPADY.P.O,ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.R.RAJESH KORMATH RESPONDENT(S): (RESPONDENT BEFORE THE COURT BELOW) ---------------------------------------------------------------------------------------------- V.GIRISH KUMAR,MADATHIL HOUSE,NALLOOR AMSOM DESOM,FAROOQUE.P.O,KOZHIKODE TALUK, KOZHIKODE DISTRICT,PIN-673631. ADV. SRI.SAJU.S.A FOR R1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2061 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 30.06.2009 IN O.S. NO.144 OF 2009 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI. EXHIBIT P2 TRUE COPY OF THE ALLEGED AGREEMENT DATED 14.7.2007 MADE MENTION OF IN THE PLAINT. EXHIBIT P3 TRUE COPOY OF THE WRITTEN STATEMENT DATED 8.10.2009 FILED IN O.S. NO.144 OF 2009 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI. EXHIBIT P4 TRUE COPY OF THE INTERROGATORIES SERVED ON THE PETITIONER AS I.A. NO.1030 OF 2010 DATED 30.6.2010 IN O.S. NO.144 OF 2009 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI. EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT DATED 14.10.2010 FILED BY THE PETITIONER IN ANSWER TO I.A. NO.1030 OF 2010 IN O.S. NO.144 OF 2009 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI. EXHIBIT P6 TRUE COPY OF I.A.L NO.1225 OF 2011 AND THE AFFIDAVIT ACCOMPANYING THE SAME DATED 16.6.2011 IN O.S. NO.144 OF 2009 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI. EXHIBIT P7 TRUE COPY OF THE COUNTER STATEMENT DATED 17.6.2011 FILED BY THE RESPONDENT TO I.A. NO.1225 OF 2011. EXHIBIT P8 CARBON COPY OF THE ORDER DATED 21.6.2011 IN I.A. NO.1225 OF 2011 IN O.S. NO.144 OF 2009 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF MANJERI. RESPONDENT(S)' EXHIBITS: NIL True copy P.S. To Judge THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2061 of 2011 ==================================== Dated this the 20th day of September, 2011 J U D G M E N T Petitioner as defendant in O.S. No.144 of 2009 of the court of learned Sub Judge, Manjeri sought amendment of Ext.P5, written statement by Ext.P6, application – I.A. No.1225 of 2011. That request was disallowed by the learned Sub Judge as per Ext.P8, order dated June 21, 2011. That order is under challenge. 2. Respondent filed the suit for specific performance of Ext.P2, agreement for sale dated 14.07.2007 allegedly executed by the petitioner. According to the respondent, pursuant to the agreement executed between parties, petitioner received a total sum of Rs.4,50,000/- as part payment and while so executed Ext.P2, agreement on 14.07.2007. It is the further contention of respondent that on 03.01.2008 as the endorsement on the back of Ext.P2, agreement states petitioner received a further sum of Rs.30,000/-. He refused to execute the sale deed and hence the suit. Petitioner contended in Ext.P3, written statement that he had borrowed Rupees One lakh from the respondent. At that time respondent had obtained two signed blank stamp papers, two signed blank cheques and title deeds as security. It was O.P(C) No.2061 of 2011 -: 2 :- contended that later yet another signed blank stamp paper was also taken by the respondent. 3. Before the parties when into trial, petitioner filed Ext.P6, application for amendment of the written statement to incorporate a plea that along with the signed blank stamp papers three signed blank papers were also obtained by the respondent. That application was resisted by the respondent and the objection found favour with the learned Sub Judge. 4. It is contended by learned counsel that amendment of written statement was necessary to decide the real dispute between the parties and rejection of the application is not legal or proper. Learned counsel for respondent contended that the plea that three signed blank papers were also obtained by the respondent was known to the petitioner when the written statement was filed and there is no justification for petitioner in not taking up that contention also in the written statement. 5. Rule 17 of Order VI of the Code of Civil Procedure permits amendment of pleadings and various decisions on the point say that when the request is for amendment of the written statement the court has to take a more liberal approach. In this proceeding what is sought to be incorporated in the written O.P(C) No.2061 of 2011 -: 3 :- statement is that along with the signed blank stamp papers and signed blank cheques and title deeds respondent had also obtained three signed blank papers from the petitioner. I am not inclined to think that if petitioner is allowed to incorporate the same in the written statement by way of amendment, that would alter the nature and character of the suit or it would prejudice the respondent. Having regard to the circumstances stated I am inclined to think that learned Sub Judge ought to have allowed Ext.P6, application for amendment of the written statement. Original Petition is allowed. Exhibit P7 order is set aside and Ext.P6 application (IA.No.1225 of 2011) will stand allowed. Petitioner shall carry out the amendment in the written statement as prayed for in I.A. No.1225 of 2011 within two weeks from the date of receipt of a copy of this judgment in the trial court. THOMAS P. JOSEPH, JUDGE. vsv