IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 OP(C).No. 2442 of 2011(O) ------------------------- IA NO.1040/2011 IN OS.498/2006 of I ADDL.SUB COURT,THIRUVANANTHAPURAM .................... PETITIONER (S): -------------------- V.CHANDRAN,VADAKKUMKARA VEEDU, UDAYAMKONAM MADIRA MURI, MANGODE VILLAGE, KOTTARAKKARA , KOLLAM. BY ADV. SRI.M.R.ANANDAKUTTAN SRI.A.MANOHARAN SRI.MAHESH ANANDAKUTTAN RESPONDENT(S): --------------- 1. ALIAMMA GEORGE, KARIMBIL BUILDINGS, KOTTYKAKAM,VITHURA PO,NEDUMANGAD, THIRUVANANTHAPURAM 695 551. 2. GEORGE VARGHESE,S/O.K.V.GEROGE, KARIMBIL BUILDINGS, KOTTYKAKAM,VITHURA PO, NEDUMANGAD, THIRUVANANTHAPURAM 695 551. 3. GEORGE KURIAN,S/O. K.V.GEORGE, KARIMBIL BUILDINGS,KOTTYKAKAM,VITHURA PO, NEDUMANGAD, THIRUVANANTHAPURAM 695 551. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.2442/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN OS NO.498/2006 OF THE SUB COURT, NEDUMANGAD EXT.P2 TRUE COPY OF IA NO.1040/2011 ON 16.2.2011 FOR AMENDMENT FILED BY THE PETITIONER EXT.P3 TRUE COPY OF THE ORDER DATED 28.6.2011 IN IA NO.1040/2011 IN OS 498/2006 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2442 of 2011 -------------------------------------- Dated this the 26th day of September, 2011. JUDGMENT Respondents are served but, there is no response. 2. Petitioner filed O.S.No.498 of 2006 in the court of learned First Additional Sub Judge, Thiruvananthapuram for recovery of damages from the respondents for alleged breach of an agreement dated 06.08.1998 for cutting and removal of trees from the property of respondents extending to about 384.58 acres. The suit was resisted by respondents, inter alia, on the ground of limitation. During the course of trial petitioner filed Ext.P2, application for amendment of plaint to say that in view of pleadings sought to be incorporated by amendment, the suit is not barred by limitation. That application was opposed. Learned Sub Judge by Ext.P3, order held that the request for amendment cannot be allowed. Ext.P3, order is under challenge. 3. It is contended by learned counsel for petitioner that though it was not specifically mentioned in the plaint, necessary facts on which the amendment is now sought for are revealed even by the documents produced along with the plaint as also the agreement referred to above, being documents produced along with the plaint should be read as part of the pleadings and hence the contention that the suit is barred by limitation cannot be entertained. According to the learned counsel it was to make the position clear that the plaint was OP(C)No.2442/2011 2 sought to be amended as per Ext.P2, application. It is further contended that amendment would not cause any prejudice to the respondents since the claim that the suit is barred by limitation is based on the extended agreement, notice and the reply notice between the parties. 4. Ext.P1 is the copy of plaint where details of the claim based on which damages is sought for are stated. According to the petitioner, the agreement was executed on 06.08.1998 for cutting and removal of trees standing in the property extending to 384.58 acres and it was the obligation of respondents to obtain pass from the forest department enabling petitioner to cut and remove the trees as per the above said agreement. Respondents failed to obtain such a pass from the department. The plaint further avers that respondents had promised to settle all the land tax arrears and claims of labourers which will facilitate obtain necessary pass from the forest department but, that was not done. Paragraph 9 of the plaint states that due to the lethargy on the part of respondent to obtain pass from the department and failure to settle labour disputes resulted in loss to the petitioner. Paragraph 10 of the plaint states that on 06.09.1999 and again on 03.10.2000 there was extension of the agreement for a further period of six months from the date of obtaining pass by the respondents. But, respondents did not obtain the pass and consequently petitioner suffered loss which is sought to be recovered from them. In paragraph 16 of the plaint it is stated that cause of action for the suit arose from 06.08.1998, 03.10.2000 - the date on which the agreement was renewed last, OP(C)No.2442/2011 3 continuously therefrom based on each breach of the contract, on 18.12.2004 – the date of notice and on 20.12.2004 – the date of receipt of notice by the respondents and thereafter on the expiry of 15 days provided in the notice and continuously thereafter. Respondents in the written statement contended that the suit is barred by limitation. 5. Ext.P2 is the application for amendment and the statements sought to be incorporated by amendment are that since the respondents failed to comply with the original terms, petitioner had to issue notice to them on 10.06.2000, on receipt of the notice respondents obtained two piecemeal passess for certain terms only on 28.07.2000 as pass Nos.10 and 11 of 2000 and thereafter failed to obtain necessary pass for cutting and removal of trees covered by the contract. Hence petitioner approached the respondents and paid additional consideration and got the time extended with specific understanding to obtain and surrender pass from the department. It is further stated that respondents had agreed on 03.10.2000 to extend the period of agreement for cutting and removal of trees to six months from the date of obtaining the pass. The further statement sought to be incorporated by amendment is that respondents failed to obtain the pass to cut and remove the trees and thereon petitioner issued notice on 18.12.2004 which was replied on 22.01.2005 and that the suit is filed immediately on receipt of the reply notice which is within the time allowed by law. According to the learned Sub Judge, pleadings sought to be incorporated should be necessary for determining the OP(C)No.2442/2011 4 real controversy and if permitted should not cause injustice to the opposite side. Learned Sub Judge observed that petitioner, by way of amendment wants to incorporate a plea that petitioner came to know regarding the denial of obligation from the reply notice dated 22.01.2005 which was makred as Ext.B4. If the amendment is allowed, according to the learned Sub Judge it will cause injustice to the respondents. Holding so, the application was dismissed. 6. Now the amendment sought for is based on the extension of the agreement on 03.10.2000, demand for compliance with the agreement as extended on that day by notice dated 18.12.2004 and its reply on 22.01.2005. Learned counsel submits that the agreement which contains the renewal on 06.09.1999 and 03.10.2000 along with the notice dated 18.12.2004 was produced along with the plaint. If that be so, the said documents should be treated as part of pleadings. In the renewal agreement dated 03.10.2000 what is stated is that the period of agreement is extended for a period of six months from the date on which the pass is obtained from the forest department. According to the petitioner, since the respondents did not comply with the said agreement also, he issued notice on 18.12.2004 which was replied on 22.01.2005. Since the relevant documents were produced along with the plaint I am not inclined to think that incorporation of the plea sought to be incorporated by amendment in the plaint would prejudice the respondents. Hence the view taken by the learned Sub Judge that if amendment is allowed, respondents will be prejudiced cannot be accepted. OP(C)No.2442/2011 5 7. It is not disputed that amendment was sought for after trial commenced. Hence petitioner has to satisfy the proviso to Rule 17 of Order VI of the Code of Civil Procedure that in spite of exercise of due diligence amendment could not be applied for. But, there could be a variety of reasons for not applying for amendment before trial commenced as noticed by this Court in Eapen Antony v. Joseph and another (2009(1) ILR (Ker.) 712). I must also bear in mind that the pleadings sought to be incorporated by amendment are covered by the relevant documents which were produced along with the plaint. In these circumstances I am inclined to think that the request for amendment ought to have been allowed. Resultantly this Original Petition is allowed. Ext.P3, order is set aside and Ext.P2, application (I.A.No.1040 of 2011) in O.S.No.498 of 2006 of the court of learned First Additional Sub Judge, Thiruvananthapuram is allowed. Petitioner shall carry out the amendment as prayed for in Ext.P2, application within one week from the date of receipt of a copy of this judgment in the trial court. Needless to say that respondents will get opportunity to file additional written statement in answer to the amended plaint. THOMAS P.JOSEPH, Judge. cks