IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 WP(C).No. 31188 of 2009(O) -------------------------- AGAINST THE ORDER DATED 14/08/2009 IN IA 2380 /2009 IN OS.284/2001 of ADDL.SUB COURT, PALAKKAD .................... PETITIONER/RESPONDENT NO.1/DEFENDANT NO.1: --------------------------------------------- MURALEEDHARAN, MANAGING PARTNER, SREE AGENCIES, 16/587, KUNNATHURMEDU, PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS/PETITIONER & R2/PLAINTIFF & DEFENDANT NO.2: --------------------------------------------------------- 1. P.V.VALSAPPAN, MANAGING PARTNER, REMYA AGENCIES, EAST FORT JUNCTION P.O, THRISSUR. 2. M/S. ELCERA SUBSTRATES LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR SHRI. RAMAKRISHNAN, NOORNI P O, PALAKKAD. ADV. SRI.K.MONI FOR R2 SRI.K.R.VINOD FOR R1 SRI.K.V.ARUN KUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.31188 of 2009 --------------------------------------- Dated this 06th day of August, 2010 JUDGMENT This writ petition is preferred by defendant No.1 in O.S.No.284 of 2001 of the court of learned Sub Judge, Palakkad in challenge of Ext.P10, order allowing amendment of plaint as sought for in Ext.P8, application. According to the learned counsel by the amendment an entirely new legal entity than the one stated in the plaint is brought in as plaintiff in the suit which is not permissible. It is also argued by learned counsel that even if the application is treated as one under Order 1 Rule 10(2) of the Code of Civil Procedure (for short, “the Code”) such amendment should be implead the real person but in this case there is no evidence to show that impleaded person is the real plaintiff. It is also stated that impleaded person does not have any cause of action against petitioner/defendant No.1 even as per averment in plaint, not to say about any document in support of that contention produced by respondent No.1/plaintiff. In the circumstance amendment ought not have been allowed. Learned counsel for respondent No.1 contends that there is no substantial amendment brought into the plaint but what is sought for by the W.P.C.No.31188 of 2009 : 2 : amendment is only to correct a misdescription of plaintiff in the cause title of plaint which the court below has rightly allowed and in the light of the decision of this court in A.V Kelankutty Vs. Nayadi and Another (1988(2) KLT 819) the order does not call for interference. Learned counsel for respondent/defendant No.2 points out that in the writ petition description of respondent No.2 is not correct in that it is a company under liquidation under the management of the official receiver which fact is not mentioned in the writ petition. 2. To understand the argument advanced by learned counsel for petitioner it is necessary to refer to the facts of this case. Respondent No.1 sued for recovery of money allegedly due from petitioner as per a contract for supply of products allegedly distributed by petitioner. In the plaint, plaintiff is stated as “P.V Valsappan Managing Partner Remya Agencies East Fort Junction, Thrissur” 3. Petitioner resisted the suit on various grounds relating to the merit of the claim of respondent No.1. While so, respondent No.1 filed I.A.No.2172 of 2009 to amend the plaint to state that M/s. Remya Agencies is a registered partnership firm. That application was resisted by the petitioner and learned Sub Judge vide Ext.P7, order dismissed that application mainly for the W.P.C.No.31188 of 2009 : 3 : reason that proposed amendment is not necessary for decision of the suit. Thereafter parties went into evidence and at that stage respondent No.1 came up with Ext.P8, application for amendment of cause title in the plaint. Attempt was to state in the cause title of plaint that plaintiff is M/s. Remya Agencies, a registered partnership carrying on business in partnership (in a particular building) at Palakkad, represented by P.V Valsappan who is its managing partner. That application was opposed by petitioner contending that the entity sought to be incorporated by amendment as plaintiff is entirely different from the entity shown as plaintiff in the plaint as originally filed and further that petitioner has no dealings with M/s. Remya Agencies, Palakkad as revealed from the documents (Exts.P3 to P6) produced along with the writ petition. According to the learned counsel documents produced in the case show that dealings of petitioner was with M/s. Remya Agencies, Thrissur and not M/s. Remya Agencies, Palakkad as now sought to be incorporated by amendment. In response, it is contended by learned counsel for respondent No.1 that there is only one partnership firm by name M/s. Remya Agencies which is registered with the Registrar of Firms, Thiruvananthapuram having its head office at Palakkad and branch offices at different places including Thrissur. According to the learned counsel it is not as if M/s. Remya W.P.C.No.31188 of 2009 : 4 : Agencies, Thrissur and M/s. Remya Agencies, Palakkad are entirely different partnership firms. It is also argued by learned counsel that a mistake occurred in the cause title of plaint as plaintiff was described as P.V Valsappan, Managing Partner of M/s. Remya Agencies, Thrissur which is to be corrected as M/s. Remya Agencies, Palakkad represented by Sri. P V Valsappan. 4. Question for consideration is whether on the above facts amendment could have been allowed. No doubt if M/s. Remya Agencies, Thrissur and M/s. Remya Agencies, Palakkad are separate firms, they are different legal entities. Even assuming so it is not as if the court is powerless to order amendment of plaint to substitute wrong plaintiff with real plaintiff. That is what the decision in A.V Kelankutty Vs. Nayadi and Another (supra) states. Relying on the decision in Bal Niketan Nursery School Vs. Kesari Prasad (AIR 1987 SC 1970) it is held, “even if the suit was instituted by a person who has no manner to do so, in that he has no cause of action would not take away the courts jurisdiction to order substitution of the right person as plaintiff provided the court to considering the evidence or materials on record was satisfied with the suits is instituted in the name of the wrong person as plaintiff through a bonafide mistake and that the impleadment was necessary for the W.P.C.No.31188 of 2009 : 5 : determination of the real issue in dispute.” Here the situation is still better in that according to respondent No.1 there are no two legal entities as M/s. Remya Agencies, Thrissur and M/s. Remya Agencies, Palakkad but there is only one partnership firm, M/s. Remya Agencies, Palakkad which has among other places branch office at Thrissur also. It is true that no documents were produced by respondent No.1 along with the application for amendment. But, at the stage of considering application for amendment it is not necessary for the court to go into the merit of the claim and what is required to be decided is whether application is bonafide and whether it is necessary for a just and fair decision of the case. Order 1 Rule 10(2) of the Code empowers the court to strike out unnecessary parties and add necessary parties. Section 153 of the Code empowers the court to correct proceedings before it. What is involved in this case is only a wrong description of the plaintiff. It was well within the power of court to allow the respondent No.1 to amend cause title of the plaint. 5. It is contended by learned counsel for petitioner that petitioner had no transaction with M/s. Remya Agencies, Palakkad and that its transactions were with M/s. Remya Agencies, Thrissur. Learned counsel states that even as per the plaint averments basis for plaint claim is an agreement dated 24- W.P.C.No.31188 of 2009 : 6 : 07-1998 which is executed between petitioner and M/s. Remya Agencies, Thrissur and it is on the basis of that agreement that there was business transactions between petitioner and plaintiff. Learned counsel refers to another agreement dated 10-08-2008 executed between M/s. Remya Agencies, Palakkad and petitioner for distribution of products in Thrissur which is not covered by the agreement dated 24-07-1998. Whether the newly substituted plaintiff is entitled to succeed in the plaint or has a cause of action against petitioner are not matters required to be gone into this proceeding. It is open to the petitioner to file additional written statement in the way it is argued or in any other manner as provided under law and resist claim of substituted plaintiff. 6. It is then argued by learned counsel that by Ext.P7, order request for amendment of plaint to state that M/s. Remya Agencies is a registered partnership firm was disallowed by the learned Munsiff and hence amendment sought for as per Ext.P8 to the extent it related to registration of partnership should ought not have been allowed. I must bear in mind and as seen from Ext.P7, order reason for disallowing that amendment was since such an amendment was not necessary for decision of the suit. That was at a time plaintiff was Sri. P V Valsappan though describing him as Managing Partner of the partnership firm. It is in that situation learned Sub Judge disallowed application for W.P.C.No.31188 of 2009 : 7 : amendment vide Ext.P7, order. That, learned Sub Judge has made it clear in Ext.P10, order also. 7. It is then argued by learned counsel that at any rate Ext.P10, order does not refer to all the objections raised by petitioner. I have gone through Ext.P10, order which contains substance of the objection though the arguments have not been stated at depth. Having regard to the facts and circumstances of the case I do not think that for the said reason impugned order is liable to be set aside. I find no reason to interfere with the impugned order. I make it clear that it is open to the petitioner to file additional written statement raising all contentions available to it as provided under law. Writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-