IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 WP(C).No. 23359 of 2007(E) -------------------------- OS.672/2003 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: ------------ 1. M/S.UBC (A TRUSTED BRAND IN TEXTILES), NETHAJI ROAD, PADIVATTOM,EDAPPILLY,KOCHI 24 REP. BY ITS MANAGING PARTNER K.N.UNNIKRISHNAN, KALIKURUMKBANTHRAYIL,PADIVATTOM,EDAPPILLY, KOCHI-24. 2. SINDHU ENTERPRISES,NO.66, GOPALAPRABHU ROAD,DD BAZAR,KOCHI-35, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER K.N.UNNIKRISHNAN,KALIKURUMKBANTHRAYIL, PADIVATTOM,EDAPPILLY, KOCHI-24. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU RESPONDENTS: ------------- ST.GEORGE BANKERS AND KURIES (REGD) M.G.ROAD,ERNAKULAM REPRESENTED BY ITS MANAGING PARTNER. BY ADV. SRI.GEORGE KARITHANAM VARGHESE FOR R1 SRI.V.J.JOHN FOR R1 SRI.C.I.ABRAHAM FOR R1 SRI.JOSE KURIAKOSE (VILANGATTIL) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.23359 of 2007 EXT.P1 A TRUE COPY OF THE PLAINT IN O.S.NO.672/2003, ON THE FILE OF THE HON'BLE SECOND ADDITIONAL SUB COURT, ERNAKULAM. EXT.P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN O.S.NO.672/2003 ON THE FILE OF THE HON'BLE SECOND ADDITIONAL SUB COURT, ERNAKULAM. EXT.P3 A TRUE COPY OF THE I.A.NO.5094/2006 IN O.S.NO.672/2003 UNDER ORDER 6 RULE 17 FOR AMENDMENT OF THE PLAINT. EXT.P4 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN I.A.NO.5094/2006 IN O.S.NO.672/2003. EXT.P5 A TRUE COPY OF THE ORDER DATED 11.4.2007 I.A.NO.5094/2006 IN O.S.NO.672/2003. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.23359 of 2007 ------------------------------- Dated this the 1st July, 2008. J U D G M E N T Plaintiffs in O.S.No.672 of 2003, on the file of Sub Court, Ernakulam, filed this writ petition under Article 227 of the Constitution of India, challenging Ext.P5 order, dismissing Ext.P3 petition (I.A.No.5094/2006), a petition filed under Rule 17 of Order VI of Code of Civil Procedure, to amend the plaint. 2. The learned counsel appearing for petitioners and learned counsel appearing for the respondent were heard. 3. Under Ext.P5 order, learned Sub Judge dismissed the application holding that if the petition is allowed, the very nature and character of the suit will be changed. The argument of the learned counsel appearing for the petitioners is that the amendment sought for is in accordance with the contentions raised by the respondent in the written statement, and though the subscription for the kuri was being paid from the account of the first plaintiff-firm, the subscription was in the name of the Managing Partner, in his personal capacity, and, therefore, learned Sub Judge should have allowed the petition. W.P.(C) No.23359 of 2007 2 4. The learned counsel appearing for the respondent supported Ext.P5 order arguing that that, if allowed, the plaint would be a different plaint altogether, and, learned Sub Judge rightly dismissed the application. 5. The suit as now stands is instituted by a partnership firm and a proprietary concern. The first plaintiff firm is represented by its Managing Partner, who is also the power of attorney holder of second plaintiff, proprietary concern. As per the plaint, both the plaintiffs subscribed to Chitty No.106/23 conducted by the respondent, and paid 20 instalments, and altogether paid Rs.3,86,100/=. It is sought to be realised with 18% interest. In the written statement, respondent denied the case. But it is admitted that Managing Partner, Unnikrishnan, in his individual capacity was a subscriber to the kuri conducted by the respondent. As per the written statement, that kuri is not chitty No.106/23 as shown in the plaint, but Chitty No.106/99, and he deposited only Rs.2,02,500/=. It is one year subsequent to the filing of the written statement, Ext.P3 petition was filed to amend the plaint. 6. Proposed amendment is to change both the plaintiffs and substitute in its place Unnikrishnan as plaintiff, though he is the very same Managing Director of the first plaintiff firm and the power of W.P.(C) No.23359 of 2007 3 attorney of second plaintiff proprietary concern. The amendment sought for is allowed with change of the kuri from Chitty No.106/23 to Chitty No.106/99, as well as the total remittance made from Rs.3,86,100/= to Rs.2,75,000/=. As rightly found by learned Sub Judge, if the petition is to be allowed, result would be a new plaint, wherein decree is sought for realisation of the amount paid in Chitty No.106/99, instead of the amount paid by the partnership form and the proprietery concern in Chitty No.106/23. In such circumstances, I do not find any illegality or irregularity warranting interference in Ext.P5 order. The learned counsel appearing for respondents submitted that the dismissal of the petition may not stand in the way of impleading the Managing Partner in his individual capacity. That is not a fact to be considered or decided in this writ petition, and hence it is not necessary to decide that aspect in this petition. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.