IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 WP(C).No. 27438 of 2007(N) -------------------------------------- OS.416/2003 of I ADDL.SUB COURT,ERNAKULAM ................................................ PETITIONER: ----------------- GEORGE JACOB, S/O.KOCHAKKU KORATH, KAVUNGAL HOUSE, AYYAMPILLY - 682 501 BY ADV. SRI.A.K.CHINNAN SMT.SUSAL A. CHINNAN RESPONDENTS: ---------------------- 1. REENA DEVI, W/O.RADHAKRISHNAN, NEDIYAPARAMBATH, SAYUJYAM, PERUMPADANNA, PARUR - 683 513. 2. RADHIKA R.MENON, D/O.RADHAKRISHNAN, NEDIYAPARAMBATH, SAYUJYAM, PERUMPADANNA, PARUR - 683 513. 3. RAMESH R.MENON, S/O.RADHAKRISHNAN, NEDIYAPARAMBATH, SAYUJYAM, PERUMPADANNA, PARUR - 683 513. 4. THANKAPPAN, S/O.KESAVAN, CHAKKUKULANGARA HOUSE, VENNALA, EDAPPALLY - 682 028. 5. V.J.SEBASTIAN, S/O.JOSEPH, VELUTHAPPILLY HOUSE, TRIKKANARVATTOM, ERNAKULAM NORTH. R1 TO R4 BY ADV. SRI.K.V.JAYACHANDRAN SRI.RAJU V.MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 27438/2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE AGREEMENT EXECUTED DT. 25/1/2001. EXT.P2. COPY OF THE PLAINT DT. 23/07/2003 SUBMITTED BY THE PETITIONER BEFORE THE SUB COURT, ERNAKULAM. EXT.P3. COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER IN IA NO. 4689/07 TO AMEND THE PLAINT. EXT.P4. COPY OF THE ORDER IN IA NO. 4689/07 IN OS NO. 416/2003 DT. 13/08/2007 OF THE SUB COURT, ERNAKULAM. RESPONDENT'S EXHIBITS NIL. True copy tga M.N.KRISHNAN, J ===================== W.P.(C) No.27438 OF 2007 ===================== Dated this the 27th day of March 2008 JUDGMENT This writ petition is filed with a prayer to set aside the order in I.A.No.4689 of 2007 in O.S.No.416 of 2003. The suit is one for specific performance of a contract filed by the plaintiff against the 3rd defendant. The prayer in the plaint would reveal that the 3rd defendant at the time of institution of the suit was only a minor. It will further show that the plaintiff has only prayed for execution of a sale deed by defendants 1 and 2 in favour of the plaintiff with respect to 12 2/3 cents of property(2/3 share) and in the alternative for realisation of the amount. Subsequently the plaintiff has filed this application for amendment of the plaint whereby he wants the 3rd defendant also to execute the sale deed in favour of the plaintiff. The court below considered the rival contention of the parties. The agreement was executed on 25.1.2001. The stipulated period as per the agreement is 6 months. So the suit has to be filed before 25.7.2004. The present suit is filed on 23.7.2003. The question that arises for determination is that the plaintiff has not chosen to claim any relief against the 3rd WP(C)27438/2007 -:2:- defendant and now the plaintiff wants to incorporate a prayer directing the 3rd defendant also to execute the sale deed. The court below held that since 3 years is the period and as it has exhausted on 25.7.2004 an application for amendment filed claiming relief against the 3rd defendant is barred by limitation under the provisions of the Limitation Act and therefore a vested right in the 3rd defendant cannot be taken away by allowing an application for amendment. Learned counsel for the petitioner submits before me that the court has to be extremely liberal in allowing the amendment application. He had referred to the decision of the Supreme Court in Usha Devi v. Rijwan Ahmad & Ors(2008 AIR SCW 1061) and Andhra Bank v. ABN Amro Bank N.V.(2007 AIR SCW 4466). It is also held in those decisions that merits or demerits need not be considered. At the same time, it is a well settled provision that suppose a claim is barred by limitation on the date of filing of the amendment application and if an amendment is allowed, whereby it is related back to the date of the institution of the suit, then a valid defence which is available to the defendants will get vanished and whether in such circumstances an application for amendment can be allowed. This court in the decision reported in Bhaskaran Nair v. Chandramathiyamma(2006(1) KLT 533 held as follows: WP(C)27438/2007 -:3:- “The court as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of application. But that is a factor to be taken into account in exercise of the discretion as to whether the amendment should be ordered or not and it does not affect the power of the court to order it. In a case where the relief sought through amendment of plaint would be barred by limitation, the plea of limitation could be made the subject matter of the issue after allowing the amendment prayed for. It is open to the court ordering amendment to specify that the amendment will not relate back to the date of plaint so as to affect the defence of limitation available to the defendant”. So, it has to be held in such cases that the court has to specifically state whether it will relate back to the date of the suit or on the date of the application. Or, in other words, if such a finding is entered into and it is found that it relates back to the date of the plaint, the claim will be barred by limitation. Then there is no point in allowing such an amendment application. 2. Here, the learned counsel for the petitioner would submit that the 3 years period is to be considered when the plaintiff has notice that performance is refused. A notice was preceded before the institution of the suit against all and the guardian of the minor had sent a reply refusing the same. Though she may not be legally entitled to deal with the property in violation of Section 8(2) of the Guardians and Wards Act but is a person WP(C)27438/2007 -:4:- competent to represent the affairs of the minor is legally and send a reply whereby refusing to comply with the performance of the contract. Therefore, it has also to be held that Sections 6 and 7 of the Limitation Act may not come to the rescue of the plaintiff in this case because he wants to institute suits against minors. When the father in clear and categorical terms asserted and refused the cause of action against this minor had arisen on the date of notice and therefore the time has started to run from that period, i.e. at least from the institution of the suit. Therefore a valid defence which is already available and knowing the implications the plaintiff had omitted to incorporate a prayer seeking relief against the 3rd defendant are all indicative of the facts that he never wanted to proceed against the 3rd defendant in this case. When it is allowed it will relate back to the filing of the suit which will take away the plea of limitation. Under these circumstances, as there is no bona fides and as it takes away a valid right amendment cannot be allowed. Therefore, I do not find any merit in this writ petition and dismiss the same. M.N.KRISHNAN, JUDGE Cdp/- WP(C)27438/2007 -:5:-