IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 17704 of 2008(G) ---------------------------------------- (I.A.NO.5471/07IN A.S.74/04 OF PRL.SUB COURT, TRIVANDRUM) PETITIONER: ---------------------- OMANA, W/O.STEPHAN , PANANVILA PUTHEN VEEDU, PANANVILA, NALANCHIRA, THIRUVANANTHAPURAM, RESIDING AT DIVYA BHAVAN, UPXI/4 7B,CHEMPAKASSERY LANE, KESAVADASAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.B.SATHIQ RESPONDENTS: ------------------------- 1. FRANCIS, S/O.JOSEPH, PUTHUVAL PUTHEN VEEDU, CHEMPAKASSERY ROAD,KESAVADASAPURAM, RESIDING AT JOY BHAVAN, CONVENT ROAD, NALANCHIRA, THIRUVANANTHAPURAM. 2. STEPHEN, S/O.JOSEPH, ROSE HOUSE, CHEMPAKASSERY LANE, KESAVADASAPURAM, PATTOM-PO, THIRUVANANTHAPURAM. 3. THE DIVISIONAL ENGINEER(ELECTRICAL PHONES) BSNL, KESAVADASAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI. D. AJITHKUMAR – R1 & R2 BY SRI. MATHEWS. K.PHILIP, SC, BSNL – R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.17704/2008 G APPENDIX PETITIONER'S EXHIBITS: EXT.P1; COPY OF THE APPEAL MEMORANDUM. EXT.P2: COPY OF THE PLAINT IN O.S.1395/1995. EXT.P3: COPY OF THE WRITTEN STATEMENT & COUNTER CLAIM. EXT.P4: COPY OF THE JUDGMENT DTD. 30/01/2004. EXT.P5: COPY OF THE I.A.NO.5471/2007. EXT.P6: COPY OF THE OBJECTION. EXT.P7: COPY OF THE ORDER DTD. 16/02/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO.17704 OF 2008 ------------------------------------------ Dated this the 13th day of August, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging Ext.P7 order passed by Sub Court, Thiruvananthapuram in I.A.5471 of 2007 and A.S.74 of 2004. I.A.5471 of 2007 was filed by respondents 1 and 2 (the appellants in A.S.74 of 2004) under Rule 17 of Order VI of Code of Civil Procedure to amend the plaint incorporating a new paragraph as paragraph 2, deleting the original one. Under Ext.P7 order, learned Sub Judge allowed the application as follows:- “Suit is of the year 1995. Date of decree is 30.1.2004. This I.A. Is highly belated. However, amendment of pleadings has to be liberally construed. It is for a comprehensive decision of the suit. Other side would not suffer any prejudice. However, this I.A. was allowed on payment WP(C)17704/08 2 of cost of Rs.1000/- to respondents 1 and 2 on or before 27.2.2008.” 2. First of all, learned Sub Judge should not have disposed I.A.5471 of 2007 before hearing the appeal. From the order it is clear that fact that the petition was filed at the appellate stage was not even considered. Secondly, the learned Sub Judge has to be considered why the amendment application was not filed before the trial commenced and why the application is to be allowed by the appellate Court. Even Ext.P6 objection raised by the respondents was not considered. Ext.P7 order is therefore quashed. Learned Sub Judge is directed to consider I.A.5471 of 2007 along with appeal and dispose it in accordance with law. Writ petition is disposed of. M. SASIDHARAN NAMBIAR, JUDGE Okb/-