IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 WP(C).No. 18578 of 2008(J) -------------------------- OS.16/2006 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER: ------------ AJITHKUMAR, 39, S/O.PUNNATHARA SANKARANKUTTY PILLAI, KODUNGALLUR DESOM LOKAMALLESWARAM VILLAGE, KODUNGALLLUR TALUK BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS: ------------- RAVEENDRAN, S/O.PUNNATHARA SANKARANKUTTY PILLAI, KODUNGALLUR DESOM, LOKAMALLESWARAM VILLAGE, KODUNGALLUR TALUK BY ADV. SRI.N.P.SAMUEL FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T No representation for the petitioner today also. Hence, the writ petition is dismissed. 11.7.2008 Sd/= (M.SASIDHARAN NAMBIAR, JUDGE.) //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 18578 OF 2008 ............................................ DATED THIS THE 25th DAY OF JULY, 2008 JUDGMENT Plaintiff in O.S.16 of 2006 on the file of Sub Court, Irinjalakuda is the petitioner. Defendant is the respondent. The suit was instituted to set aside document No.850 of 2005 of S.R.O, Kodungalloor, contending that executant of the document had no mental capacity to execute the sale deed. I.A.1538 of 2007 was thereafter filed to amend the plaint under Rule 17 of Order VI of Code of Civil Procedure. Under Ext.P4 order, the petition was dismissed. This petition is filed under Article 227 of Constitution of India to quash Ext.P4 order. 2. Learned counsel appearing for petitioner and respondent were heard. 3. The amendment sought for is to incorporate an additional paragraph in the plaint to the effect that to justify document No.850 of 2005, on the same day of its execution, three other documents were executed and they are document No.851 of 2005, 852 of 2005 and 19 of 2005, and the last is a will and those documents are also void and therefore petitioner is entitled to ignore the same. WP(C) 18578/2008 2 4. Respondent filed Ext.P3 objection, contending that the documents are not void and petitioner is not entitled to amend the plaint as sought for. The argument of learned counsel appearing for petitioner is that the amendment was necessitated as it was brought to the notice of petitioner that on the same day of execution of the document sought to be set aside in the plaint, other documents were also executed by the same executant and therefore learned Sub Judge should have allowed the application and the merit of the plea need not be decided in that application. Learned counsel appearing for respondent argued that petitioner is not entitled to ignore documents 851 of 2005, 852 of 2005 and the registered will 19 of 2005 and they are not void documents and therefore learned Sub Judge rightly dismissed the application. It was argued that there is no bonafides in the plea at all. 5. When an application is filed either to amend the plaint or written statement, question whether the plea which is sought to be introduced thereunder is sustainable or not on merit is not to be considered in that application. That is to be decided in the suit. The question is whether for a just decision of the case, the amendment is necessary and if so whether any prejudice will be WP(C) 18578/2008 3 caused to the respondent. The amendment sought for by petitioner is only to challenge the other documents executed by the same executant of document No.850 of 2005. In such circumstances, learned Sub Judge should have permitted the amendment sought for as no prejudice will be caused. The question whether petitioner is entitled to ignore the documents are all matters to be decided in the suit. Ext.P4 order is quashed. I.A.1538 of 2007 stands allowed. Respondent is entitled to file additional written statement taking up all the defences available to him. M.SASIDHARAN NAMBIAR, JUDGE lgk/-