IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 WP(C).No. 8121 of 2008(P) ------------------------- OS.142/2003 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER: ------------ RAVEENDRAN,S/O. PUNATHARA SANKARANKUTTY PILLAI, LOKAMALESWARAM VILLAGE & DESOM KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL RESPONDENTS: ------------- 1. AJITHKUMAR S/O. PUNNATHARA SANKARANKUTTY PILLAI LOKAMALESWARAM VILLAGE & DESOM KODUNGALLUR TALUK, THRISSUR DISTRICT. 2. THE SECRETARY KODUNGALLUR MUNICIPALITY, KODUNGALLUR . 3. DAKSHYANI AMMA W/O.PUNNATHARA SANKARANKUTTY PILLAI LOKAMALESWARAM VILLAGE & DESOM KODUNGALLUR TALUK, THRISSUR DISTRICT. 4. USHA, W/O.RAJENDRAN, "SREEPADAM" CHENGAMANADU DESOM, ALUVA TALUK ERNAKULAM DIST. 5. MANY W/O.RADHAKRISHNAN, "SREERANJINI" KADAVATHU ROAD, PARUR TALUK N.PARUR, ERNKAULAM DIST. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 8121 OF 2008 --------------------- Dated this the 11th day of March, 2008 JUDGMENT This writ petition is preferred with a prayer to set aside the order passed by the Additional Subordinate Judge, Irinjalakuda in IA 2506/07 in OS 142/03 whereby the court below permitted the 2nd plaintiff to amend the plaint. The brief facts would reveal that the 1st plaintiff namely, the father of the 2nd plaintiff, instituted a suit for recovery of possession on the strength of title and also for a permanent prohibitory injunction. The 2nd plaintiff is claiming the property on the strength of a Will alleged to be executed by the father in his favour. It is also contended that the father has executed three documents namely 850, 851 and 852 and a Will 19/05. The plaintiff raised a prayer to ignore those documents. 2. How far those documents can be ignored without resorting to the legal formalities necessary to ignore the document, is a larger question that has to be considered in the suit. Now the question is, if the Will executed by the father of the plaintiff in the year 1996 is a valid document then on the death of the father the son may be WPC NO 8121/08 2 entitled to get absolute right over the property provided, the court enters into a finding regarding the invalidity of documents 850, 851 and 852 and Will No. 19/05. These are larger aspects, which have to be considered by the court in the suit including the defect in the prayer. It is a well settled principle that at the time of considering the amendment application, the court is not expected to go into the merits or demerits of the case to disallow that prayer. So taking into consideration all these principles, I do not find any ground to interfere with the order passed by the learned Subordinate Judge. The writ petition is dismissed. But I make it clear that the defendants can raise all the legal contentions including the maintainability of the suit in their written statement and if necessary, the court can consider it as a preliminary issue under Order XIV Rule 2 of the Civil Procedure Code and dispose it of in accordance with law. M.N.KRISHNAN, JUDGE vps WPC NO 8121/08 3 WPC NO 8121/08 4 WPC NO 8121/08 5