IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 WP(C).No. 9020 of 2008(W) ------------------------- AGAINST THE ORDER DATED 12/03/2008 IN IA 424/08 IN OS.191/2005 of III ADDL.SUB COURT, KOZHIKODE .................... PETITIONER: ------------ SREE GANESH CHITTS & BANKERS, EDAKKAD, KOZHIKKODE-5 REP. BY MANAGING PARTNER, K.E.SURESHBABU, PUTHIYANGADI VILLAGE, EDAKKAD AMSOM,KOZHIKODE BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SRI.VINEETH KURIAKOSE RESPONDENTS: ------------- 1. M/S. LIGHT POINT,SAVITHRI BUILDINGS WAYANAD ROAD, KOZHIKODE. 2. MRS MAHIJA PRAMOD, W/O. PRAMOD KUMAR D/O. BHARATHN, PROPRITRIX, M/S. LIGHT POINT,PLESENT, A.G.ROAD, KOZHIKODE. 3. P.A.PRAMOD KUMAR, S/O.BHASKARAN, PLESENT, DO..DO.. BY ADV. SRI.K.PRAVEEN KUMAR FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.9020 of 2008 PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.191/2005 BEFORE THE SUB COURT, KOZHIKODE, DATED 10.6.2005. EXT.P2 TRUE COPY OF THE WRITTENS TATEMENT FILED BY THE RESPONDENTS/DEFENDANTS IN O.S.NO.191/2005 BEFORE THE SUB COURT, KOZHIKODE, DATED 4.2.2006 EXT.P3 TRUE COPY OF THE APPLICATION FOR AMENDMENT FILED AS I.A.No.424/2008 dated 28.1.2008 EXT.P4 TRUE COPY OF THE ORDER IN I.A.NO.424/2008 IN O.S.NO.191/2005 ON THE FILE OF THE SUB COURT, DT. 12.3.2008. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.9020 of 2008 ------------------------------- Dated this the 9th July, 2008. J U D G M E N T Plaintiff in O.S.No.191 of 2005, on the file of Sub Court, Kozhikode, is the petitioner. Defendants are respondents. The suit is for realisation of the amount due from the defendants under two promissory notes. In the written statement, defendants admitted receipt of the amount, but contended that suit is barred by limitation. Petitioner filed Ext.P3 petition for permission to amend the plaint. The amendment sought for is to introduce a plea that when the suit was to be instituted, defendants 2 and 3 were out of India, and therefore, suit cannot be instituted within the period of limitation. Under Ext.P4 order, learned Sub Judge dismissed the application holding that if the petition is allowed, it would take away the defence available to the defendants, and, would prejudice them, and hence cannot be allowed. This petition is filed under Article 227 of the Constitution of India challenging Ext.P4 order. W.P.(C) No.9020/2008 2 2. The learned counsel appearing for the petitioner was heard. Notice served to respondents were not served and petitioner was directed to serve notice on the counsel appearing for respondents before the trial court. Petitioner produced a receipt showing service of notice on the counsel appearing for respondents before the trial court. Hence service is recorded sufficient. 3. The learned counsel appearing for the petitioner argued that in the plaint itself, fact that defendants 2 and 3 were not in India was pleaded and by the proposed amendment, that fact is further clarified and in such circumstances, learned Sub Judge was not justified in rejecting the application. It was also pointed out that by amendment, plaintiff is entitled to introduce a plea which is even barred by limitation, and question whether suit is barred or not is ultimately to be decided in the suit and on the ground that plea is barred, amendment petition cannot be rejected. There is force in the submission. Even if the plea sought to be introduced by the amendment to the plaint is barred by limitation, the amendment sought for cannot be rejected on that ground. Instead the question W.P.(C) No.9020/2008 3 whether the plea is barred or not is to be decided in the suit, as the defendants are entitled to raise the plea of bar of limitation by filing additional written statement. By the amendment, petitioner has only sought to introduce a plea, which even otherwise was there in the plaint that defendants 2 and 3 were not in India at the time when the suit was to be instituted. No serious prejudice will be caused if the amendment is allowed. In such circumstances, Ext.P4 order is quashed. Ext.P3 petition (I.A.No.424/2008) stands allowed. Respondents-defendants are entitled to file additional written statements raising all available plea, including the one of bar of limitation. M.SASIDHARAN NAMBIAR, JUDGE nj.