IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 35170 of 2008(J) -------------------------------------------- IA 1625/2008 IN OS.206/2007 of PRINCIPAL SUB COURT, ATTINGAL .................... PETITIONER: E.JALALUDEEN, AGED 56 YEARS, S/O.EBRAHIMKUNJU, "JAS VILLA". PUTHYAKAVIL, EDAPPZHANADU, KILIMANOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.R.S.KALKURA RESPONDENT: G.SOMAN, AGED 55 YEARS, RESIDING AT "ROHINI"PALLICKALMURI, MYLOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.35170 of 2008 J -------------------------- JUDGMENT Heard counsel for the petitioner/defendant. 2. The writ petition is filed challenging the amendment of plaint allowed vide Exhibit P6 order on I.A.No.1625/08 in O.S.No.206/07 on the file of the Sub Court, Attingal. The amendment that was sought for vide Exhibit P4 amendment application (I.A. No.1625/08) is to strike off the date “1.1.2005” and incorporate the date “27.10.2001” in the place thereof in the sentence in paragraph 5 of the plaint, which reads as follows: “The defendant had further collected an amount of Rupees Nine lakhs between 1.1.2005 and 19.3.2005 from the plaintiff adjusting in the balance sale consideration of the plaint schedule property.” 3. According to the counsel for the petitioner, such an amendment when allowed will save the suit WPC 35170/08 2 from the bar of limitation and therefore, when the contention of the petitioner/defendant was that the suit for specific performance of the agreement is barred by limitation, the amendment on the above lines, which would enable the plaintiff to get over the bar of limitation should not have been allowed. 4. The question as to whether the plea advanced by the plaintiff is true or not is a matter to be decided on the evidence that may be adduced in the case. The trial court, on being convinced that the mistake in the date mentioned was bona fide, has allowed the amendment, as the correctness or otherwise of the statement cannot be probed into while considering an amendment application. The petitioner/defendant can challenge the correctness of the allegation and establish the incorrectness and have his plea established on evidence. It is not a case where without evidence being adduced in the case, the amendment sought for has to be brushed aside and a finding has to be entered into WPC 35170/08 3 on the question of limitation, disabling the plaintiff to set out his case in full before the trial court. Hence, there is no merit in assailing Exhibit P6 order passed by the trial court allowing amendment of plaint. This writ petition is devoid of merit and is, hence, dismissed. 28th November, 2008 (K.P.Balachandran, Judge) tkv