IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 WP(C).No. 22352 of 2009(O) -------------------------- AGAINST THE ORDER IN IA. 4609 /2008 IN OS.124/2002 of PRL.S.C.,THALASSERY .................... PETITIONER(S): DEFENDANT/RESPONDENT: ------------------------------------------------------------------ DR.SHYAMALA ASHOK, D/O.SREEDHARAN, RESIDING AT GEMINI, OPP.S.N.PARK, KANNUR. BY ADVS. MR.V.RAJAGOPAL, MR.G.MOHAN. RESPONDENT(S): PLAINTIFFS/PETITIONERS: ------------------------------------------------------------------- 1. K.P.AJITH KUMAR, S/O.MALINI, RESIDING AT SHEEMAS PANAMKAV, CHIRAKKAL AMSOM, PUZHATHI DESOM, KANNUR. 2. K.P.JYOTHIAN, OF DO. 3. K.P.SREEJESH KUMAR OF DO. R2 BY ADVS. MR.K.V.SOHAN, SMT.SREEJA SOHAN.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.22352 OF 2009 -------------------------- Dated this the 1st day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) To call for the records leading to Ext.P6 order and set aside the same. ii) To declare that Ext.P6 order is illegal. iii) To direct the Sub Judge, Thalassery to give opportunity to the petitioner to be heard in the matter and pass a speaking order. iv) To pass such other appropriate writ, order or direction as this Hon'ble Court deems fit to grant in the facts and circumstances of the case. 2. Petitioner is the defendant in O.S No.124 of 2002 on the file of the Sub Court, W.P.(C).No.22352 OF 2009 Page numbers Thalassery. Suit is one for cancelling a decree passed in a previous suit by the Sub court, Ernakulam, and the respondents are the plaintiffs. The defendant resisted the suit filing a written statement. Later, the respondents/ plaintiffs filed an application for amendment of the plaint. Ext.P3 is the copy of that application. The court below allowed that application stating that no counter was filed by the defendant. Propriety and correctness of the order passed by the court below allowing the amendment application is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The learned counsel for the respondents/plaintiffs fairly submitted that a counter had been filed by the petitioner/defendant, but it was not brought to W.P.(C).No.22352 OF 2009 Page numbers the notice of the court when Ext.P3 application was considered. It is noticed that the court below has not applied its mind to the amendment sought for and a cryptic order has been passed that 'the counter not filed the petition is allowed'. For that reason itself, the order of the court below is liable to be set aside. Setting aside that order, I direct the court below to consider the merit of the amendment application in the light of the counter filed by the defendant. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv