IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 WP(C).No. 19422 of 2007(K) -------------------------- AGAINST THE ORDER DATED 03/04/2007 IN IA 35/2005 IN OS.124/2003 of SUB COURT, MANJERI .................... PETITIONER: ------------ MACHINGAL MOIDEEN, S/O PARAYIL AMINA, AGED 68 YEARS, PARAYIL HOUSE, THAZHEKKODE AMSOM, AMMINNAKKADU DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: ------------- 1. KUNHARAMU, S/O KUNHAYAMU, OTTAPPALAM TALUK, KARALMANNA AMSOM AND DESOM, PALAKKAD DISTRICT. 2. PATHWOMA, D/O KUNHAYAMU, OTTAPPALAM TALUK, KARALMANNA AMSOM AND DESOM, PALAKKAD DISTRICT. 3. MOHAMMED ALIAS VAPPU, S/O PARAYIL MOIDU, PERINTHALMANNA TALUK, PATHAKKARA AMSOM AND DESOM, MALAPPURAM DISTRICT. 4. ABOOBACKER, S/O PARAYIL AMINA, AGED 68 YEARS, PARAYIL HOUSE, THAZHEKKODE AMSOM, AMMINNAKKADU DESOM, PERINTHALMANNA. BY ADV. SRI.BABU S. NAIR FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.19422/07 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE PLAINT IN O.S.No. `124/03 ON THE FILE OF THE SUBORDINATE JUDGE, MAN JERI. EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER DATED 30.12.2003. EXT.P3: TRUE COPY OF THE APPLICATION FOR AMENDMENT FILED AS I.A.No.35/05 IN O.S.No. 124/03 ON THE FILE OF THE SUBORDINATE JUDGE, MANJERI. EXT.P4: TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDENTS 1 & 2 IN I.A.No.35/05. EXT.P5: TRUE COPY OF THE ORDER IN I.A.No.NO.35/05 IN O.S.No. 124/03 ON THE FILE OF THE SUBORDINATE JUDGE, MANJERI DATED 3.4.07. TRUE COPY M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 19422 OF 2007 --------------------- Dated this the 14th day of March, 2008 JUDGMENT This writ petition is preferred against the order of the Subordinate Judge, Manjeri, whereby he has dismissed the application for amendment of the written statement by order in IA 35/05 in OS 124/03. The learned Subordinate Judge has written a very considered order and had considered all the contentions on the point to arrive at a decision. Learned subordinate Judge held that there is a specific admission in the written statement with regard to the denial of the alleged right of Saidu over the property and the devolution of property to Saidu to his successor on his demise. What is purported to be done by the proposed amendment is to withdraw the same and to incorporate additional pleadings, which are contradictory to the original written statement. The court also considered the decision of Apex court in Baldev Singh v. Manohar Singh [2006 (3) KLT 953 (SC)] wherein the court held that amendment of the pleadings shall not be allowed when the trial of the suit has already commenced. The court considered the facts of that WPC NO 19422/07 2 case and held that as there is no withdrawal of admission, the amendment can be allowed. Learned Subordinate Judge had also relied upon the decision of the Apex court reported in Md. Ishaq v. Md. Iqbal & Md. Ali & Co. [AIR 1978 SC 798] and in Modi Spg. & Wvg. Mills v. Ladha Ram & Co. [AIR 1977 SC 680] and held that when an amendment, introducing entirely different new case and seeking to displace the plaintiff completely from admissions made by defendant in the written statement is impermissible under law. The court ultimately held that on striking of the relevant portions in the written statement, whereby categoric admissions are made and the attempt at a belated stage to withdraw the same cannot be permitted in law as per the decision laid down by the Apex court. I do not find any illegality, irregularity or perversity in the order passed by the court below. The writ petition lacks merit and it is accordingly dismissed. M.N.KRISHNAN, JUDGE vps WPC NO 19422/07 3 WPC NO 19422/07 4 WPC NO 19422/07 5