IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 WP(C).No. 17608 of 2010(O) -------------------------- OS.749/2002 of PRL.M.C.,KOZHIKODE-II .................... PETITIONERS: --------------- 1. P.V.KHADEEJA BEEVI, D/O.PVSH THANGAL, RESIDING AT ADUKKATHKANDI VEEDU, KIZHAKKOTH AMSOM, DESOM, KOZHIKODE TALUK. 2. P.V.ABDUL RAZAK, S/O. DO., RESIDING AT EDAPPADATHIL, IN DO.DO.DO. 3. P.V.SAYED ASHRAF, S/O. DO., SANAM HOUSE, KIZHAKKOTH AMSOM,DESOM, KOZHIKODE TALUK. 4. P.V.BASHEER, S/O. DO., RESIDING AT NEST HOUSE, IN DO. DO. DO. 5. P.V.SUBAIDA BEEVI, D/O. DO., SNEHATHEERAM HOUSE, MADAVOOR AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR) SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENTS: --------------- 1. P.V.ABDUL KHADER, S/O.AHAMMED KOYA THANGAL, ATHITHAZHATH HOUSE, KIZHAKKOTH AMSOM DESOM, KOZHIKODE TALUK. 2. KAMARUNNEESA, D/O.C.SEETHI, 3/625, WAYANAD ROAD, KACHERI AMSOM DESOM, KOZHIKODE. 3. C.SEETHI, S/O.ABDUL KHADER, IN DO. DO. DO. 4. C.SUHARA, D/O.C.SEETHI, IN DO. DO. 5. C.SALEEKKATH, D/O. DO. IN DO. DO. 6. C.HASHIM, S/O. DO. IN DO. DO. W.P.C.No.17608 of 2010 7. JAM IYYATHU ATHBAYI NAKSHBANDIYA, KIZHAKKOTH AMSOM DESOM, KOZHIKODE. 8. P.V.SHAHUL HAMEED, S/O.SAYED HASSAN THANGAL, PUTHANVEETTIL HOUSE, KODUVALLY AMSOM DESOM, KOZHIKODE. 9. B.C.ABDURAHIMAN, S/O.AHAMMED, KAVULLAKANDIYIL HOUSE, ELETTIL AMSOM DESOM, KOZHIKODE. 10. CHERAYAKKATTU JAFFER SIDDIQUE, IN DO.DO. 11. JASMIN, D/O.C.SEETHI, 3/625, WAYANAD ROAD, KACHERI AMSOM DESOM, KOZHIKODE. ADV. SMT.T.D.RAJALAKSHMI FOR R1,3TO6 SRI.R.SREEHARI FOR R1,3 TO 6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No.17608 of 2010 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : WRITTEN STATEMENT OF DEFENDANT NO.5 IN O.S.NO.749 OF 2002 MUNSIFF'S COURT – II, KOZHIKODE EXHIBIT P2 : WRITTEN STATEMENT OF ADDL DEFENDANT NO.S 6, 7, 9 AND 10 IN O.S.NO.749 OF 2002 MUNSIFF'S COURT – II, KOZHIKODE EXHIBIT P3 : APPLICATION I.A.1985 OF 2010 IN O.S.NO.749 OF 2002 FILED BY ADDL DEFENDANTS 6 TO 10 EXHIBIT P4 : COUNTER AFFIDAVIT BY PLAINTIFFS 1L, 3 TO 8 IN O.S.NO.749 OF 2002 EXHIBIT P5 : ORDER IN I.A.NO.1985 OF 2010 IN O.S.NO.749 OF 2002 RESPONDENTS' EXHIBITS : NIL True copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.17608 of 2010 --------------------------------------- Dated this 17th day of June, 2010 JUDGMENT This writ petition is in challenge of Ext.P5, order refusing to allow amendment of the written statement as requested for in I.A.No.1985 of 2010. O.S.No.749 of 2002 is a suit filed by plaintiffs for a declaration that defendant Nos.1 to 12 have no right, title or interest over plaint B schedule and for consequential injunction. They filed written statement contesting the suit. In the course of proceeding petitioners were impleaded as supplemental defendant Nos. 6 to 10. They filed written statement supporting defendant Nos. 1 to 3. While so petitioners/supplemental defendant Nos. 6 to 10 filed I.A.No.1985 of 2010 for amendment of their written statement. As seen from Ext.P3, application amendment sought for is to challenge validity of a power of attorney stated to be executed by defendant No.5 in favour of her father, additional plaintiff No.4. That application was dismissed by the learned Munsiff vide Ext.P5, order on the ground that what is sought to be incorporated by amendment is only on a question of law which can be raised even without pleading, that trial has commenced but proviso to Order 6 Rule 17 of the Code of Civil Procedure (for short, “the Code”) has W.P.C.No.17608 of 2010 : 2 : not been complied. 2. I have heard learned Senior Advocate appearing for petitioners and learned counsel for contesting respondents. Learned Senior Advocate contended that though a question of law can be argued even without a plea, there must be a factual foundation to raise that plea. Without such a foundation the question cannot be raised and hence amendment challenging the validity of power of attorney allegedly executed in favour of supplemental plaintiff No.4 was necessary. So far as finding of learned Munsiff that trial has commenced and hence bar under the proviso to Rule 17 Order 6 of the Code is concerned it is pointed out that trial had actually started before petitioners were impleaded as defendant Nos. 6 to 10 and thereafter they filed written statement. To the written statement filed by petitioners plaintiffs filed a replication. It is while so that application for amendment was preferred. Counsel for contesting respondents urged that in case this court is inclined to allow the prayer for amendment, there may be a direction to expedite the trial. 3. On going through Ext.P3, application I find that amendment sought for was necessary. I must also bear in mind that in considering an application for amendment of written statement courts must adopt a more liberal approach than in the matter of amendment of plaint. Having regard to these aspects W.P.C.No.17608 of 2010 : 3 : and also on hearing learned counsel for contesting respondents I am inclined to think that learned Munsiff ought to have allowed Ext.P3, application for amendment of the written statement. That would not in any way prejudice contesting respondents nor change the nature or character of the suit. Resultantly the writ petition is allowed and Ext.P5, order is set aside. I.A.No.1985 of 2010 in O.S.No.749 of 2002 of the court of learned Principal Munsiff, Kozhikode will stand allowed. Petitioner shall carry out the amendment within fourteen (14) days from this day or, within such time as may be extended by the learned Munsiff on application. Learned Munsiff shall make every endeavour to dispose of the suit as expeditiously as possible. (THOMAS P JOSEPH, JUDGE) Sbna/-