IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 OP(C).No. 1041 of 2010(O) ------------------------- AGAINST THE ORDER IN IA 1558/10 IN OS.53/2004 of MUNSIFF COURT,HARIPAD .................... PETITIONER: -------------------- SIVAN,M, AGED 45, S/O. MADHAVAN, THARAYIL VEEDU, MUTHUKULAM VADAKKU MURI, MUTHUKULAM VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.G.BENO SMT.S.CHYTHANYA RESPONDENT: --------------- SIVADASAN, S/O. VELAYUDHAN, PUTHENCHIRAYIL VEEDU, MANGALAM MURI, ARATTUPUZHA VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1041 of 2010 --------------------------------------- Dated this 08th day of December, 2010 JUDGMENT Plaintiff in O.S.No.53 of 2004 of the court of learned Munsiff, Haripad is the petitioner before me. He sued respondent to set aside document, declaration of title and for consequential reliefs. Respondent filed Ext.P2, written statement claiming that the suit property was assigned to him as per document No.1878 of 2003 dated 04-09-2003 for a consideration of `.4,00,000/-. In paragraph 4 respondents stated, after referring to the said assignment in his favour that mutation was effected in the name of “plaintiff”, tax is being paid and the property is being enjoyed. He raised further contentions also in the written statement. In the course of evidence it was revealed that there was a mistake in paragraph 4 in Ext.P2, in that after referring to the assignment in favour of respondent as per document No. 1878 of 2003 instead of saying that property was mutated in the name of “defendant” it was wrongly stated as “plaintiff” and the sale consideration, instead of `.3,00,000/- is stated as `.4,00,000/-. After the examination of petitioner was over, mistake was found out and respondent wanted to correct the O.P(C).No.1041 of 2010 : 2 : mistake by amendment and for the said purpose filed I.A.No.1558 of 2010. Though that application was objected learned Munsiff allowed it by the impugned order, Ext.P5. That order is under challenge. Learned counsel contends that amendment ought not have been allowed and at any rate after the trial of the case commenced. 2. On a reading of Ext.P2, written statement it leaves me no doubt that statement in paragraph 4 property was mutated in the name of “plaintiff” was obviously a mistake since immediately above that, respondent claimed that the suit property was acquired by him as per document No.1878 of 2003 dated 04-09- 2003. Yet another correction sought for is that the consideration instead of `..4,00,000/- was to be corrected as `.3,00,000/-. I am persuaded to think that these are all possible mistakes that may occur while drafting the written statement. Then the question is whether there was due diligence on the part of respondent as provided in the proviso to Rule 17 of Order VI of the Code of Civil Procedure. This court in Eapen Antony Vs. Joseph and Anr. (2009(1) ILR 713) referred to the various circumstances when a party in spite of being vigilant could fail to ask for an amendment on an earlier occasion. Possibly it was after the trial O.P(C).No.1041 of 2010 : 3 : commenced that respondent learned about the mistake in the written statement. I am not persuaded to think that the court below has exercised its jurisdiction or discretion in a wrong manner calling for interference. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-