IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 WP(C).No. 4752 of 2009(N) ------------------------- AGAINST THE ORDER DATED 20/10/2008 IN IA 10517 2004 IN OS.1833/2004 of PRL.M.C.,ERNAKULAM .................... PETITIONER(S): --------------- 1. M/S.ANSAL BUILDWELL LIMITED, REGD. OFFICE AT 118, UPPER FIRST FLOOR, PRAKASH DEEP BUILDING, 7, TOLSTOY MARG, NEW DELHI-110 001 REPRESENTED BY ITS ADDITIONAL GENERAL MANAGER, MR.M.P.MATHEWS. 2. ADDITIONAL GENERAL MANAGER, M/S.ANSAL BUILDWELL LIMITED, KOCHI PROJECT, ANSALS RIVER DALE, NEAR ARKAKADAVU BRIDGE, EROOR P.O., ERNAKULAM, KOCHI-682 306. BY ADV. SRI.JOSEPH KODIANTHARA SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH RESPONDENT(S): --------------- MAHESH KUMAR MENON I.S., S/O.LATE M.S.MENON, AGED 40, INDIRA NIVAS, VATTEKKUNNAM, EDAPPALLY NORTH P.O., KOCHI-24. R1 BY ADV. SRI.A.BALAGOPALAN, SMT.KALA G.NAMBIAR , SMT.V.B.SANTHINI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.4752 of 2009 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF LETTER OF APPOINTMENT DATED 1/7/2004 ISSUED BY THE 1ST PETITIONER. P2:- COPY OF LETTER OF TERMINATION DATED 30/11/2004 ISSUED BY THE 1ST PETITIONER. P3:- COPY OF PLAINT OS NO.1833/2004 DATED 7/12/2004 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, ERNAKULAM. P4:- COPY OF JUDGMENT DATED 21/7/2008 PASSED BY THIS HON'BLE COURT IN W.P. (C) NO.1654/2005. P4(A):- COPY OF ORDER DATED 20/10/2008 IN IA NO.10517/2004 PASSED BY THE MUNSIFF COURT, ERNAKULAM. P5:- COPY OF WRITTEN STATEMENT DATED 5/3/2005 FILED BY THE PETITIONERS IN O.S.NO.1833/2004. P6:- COPY OF IA 10256/2008 DATED 16/12/2008 FILED BY PETITIONERS BEFORE THE MUNSIFF'S COURT, ERNAKULAM. P7:- COPY OF COUNTER AFFIDAVIT DATED 19/12/2008 FILED BY THE RESPONDENT. P8:- COPY OF IA 113/2009 DATED 4/1/2009 FILED BY THE RESPONDENT. P9:- COPY OF COUNTER AFFIDAVIT DATED 8/1/2009 FILED BY THE PETITIONERS TO EXHIBIT P8. TRUE COPY P.A. TO JUDGE mns S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.4752 OF 2009 () ----------------------------------- Dated this the 13th day of October, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to set aside the order dated 24.1.2009 in I.A.No.113 of 2009 in O.S.No.1833 of 2004 on the files of the Munsiff Court, Ernakulam. ii. to direct the learned Munsiff to consider the issue as to the maintainability of the suit before further proceeding with the suit. iii. to stay all further proceedings in O.S.No.1833 of 2004 pending before the Munsiff Court, Ernakulam till disposal of the writ petition. 2. Petitioners are the defendants in O.S.No.1833 of 2004 on the file of the Munsiff Court, Ernakulam. Suit filed by the WPC.4752/09 2 respondent/plaintiff was one for a declaration that the letter issued terminating his service by the 1st petitioner company, the 1st defendant, is illegal and also for a perpetual injunction to restrain the defendants from denying employment to him and not to withhold his allowance and other benefits. Petitioners/defendants filed a written statement, in which, among other contentions, they challenged the maintainability of the suit also. Nearly five years after the institution of the suit, the respondent/plaintiff moved Ext.P8 application for amendment of the plaint seeking incorporation of additional relief of damages. The defendants resisted that application filing Ext.P9 counter affidavit contending that the amendment is not allowable. The learned Munsiff, after hearing both sides, by order dated 24.1.2009, allowed Ext.P8 application. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The learned counsel for the petitioners assailed the impugned order WPC.4752/09 3 contending that the grounds canvassed in Ext.P9 counter affidavit as to why the amendment is not permissible, were not considered by the court below and that has resulted in miscarriage of justice. Proposed amendment seeking a decree of damages was made five years after the termination of the plaintiff from service and also the institution of the suit, and it was barred by limitation, is the submission of the counsel. It is further submitted that the amendment under Ext.P8 application was canvassed after the suit came up in the list for trial with the plaintiff filing proof affidavit towards his examination in chief. Since the trial has commenced, the interdiction under the proviso to Order VI Rule 17 of the Code of Civil Procedure barring the entertainability of the amendment without satisfying the exemption provided thereunder, is applicable in the present case, according to the counsel. On the other hand, the learned counsel for the respondent/plaintiff submitted that no prejudice or injury is caused to the petitioners/defendants in allowing the amendment application as the question of limitation can be canvassed in the trial of the suit as well. According to the WPC.4752/09 4 counsel, termination of employment has not come into effect, was the case of the plaintiff, and so much so, there was no bar of limitation in seeking the claim for damages by way of amendment in the pending suit. Though the case came up in the list, trial did not proceed as the petitioners had moved an application for determining preliminarily the issue raised over the maintainability of the suit, is the further submission of the counsel that there is no impropriety or illegality in the order passed by the court below in allowing the amendment application. 4. Perusing the impugned order, I find the objections canvassed by the petitioners/defendants raised in their counter affidavit have not been taken into account nor considered by the learned Munsiff while allowing the application for amendment. In the counter affidavit, the bar of limitation in entertaining the amendment is seen canvassed, but, not its entertainability due to the applicability of the proviso to Order VI Rule 17 of the Code of Civil Procedure. That is not material as the interdiction under the proviso, even WPC.4752/09 5 if not canvassed, has to be taken note of by the court in considering the merit of the amendment application. In the given facts of the case, the objections raised by the petitioners/defendants require to be considered in examining whether the amendment application of the plaintiff is entertainable or not. Setting aside the impugned order, I direct the learned Munsiff to consider Ext.P8 amendment application afresh and dispose it after hearing both sides in accordance with law. Writ petition is disposed with the above direction. S.S.SATHEESACHANDRAN JUDGE prp