IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).NO. 15595 OF 2010(O) ------------------------------------------ OS.171/2008 OF ADDL.SUB COURT,PARAVUR .................... PETITIONER(S): --------------------------- M.I.ABDUL SALAM,S/O.ISMAIL,MANATH KUTTIKKATTIL,KAKKANAD VILLAGE,KAKKANAD.P.O, ERNAKULAM DISTRICT,PIN-682 030. BY ADV. SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL) RESPONDENT(S): ------------------------- M/S PARSVNATH DEVELOPERS LTD,REGISTERED OFFICE AT 6TH FLOOR,ARUNACHAL BUILDING,19, BARAKHAMBA ROAD,NEW DELHI-1 AND HAVING LOCAL OFFICE,AT 28/1232,'HARI',K.P.VALLON ROAD, KADAVANTHRA,KOCHI-682 020,REPRESENTED BY ITS DEPUTY GENERAL MANAGER. ADV. SRI.A.V.THOMAS SRI.G.SHRIKUMAR SRI.JOJO GEORGE SRI.NIDHI SAM JOHNS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE ALLEGED AGREEMENT FOR SALE BETWEEN THE RESPONDENT AND PETITIONER HEREIN DATED 22.7.2005. EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE SALE DEED NO.3043 OF 1987 SRO CHENGAMANAD. EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE PLAINT FILED BY THE RESPONDENT HEREIN PLAINTIFF IN O.S. NO.171 OF 2008 HONOURABLE SUB COURT, NORTH PARAVUR. EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENT DATED 16.10.2008 FILED BY THE PETITIONER HEREIN/DEFENDANT IN O.S. NO.171 OF 2008 HONOURABLE SUB COURT, NORTH PARAVUR. EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE CROSS EXAMINATION OF P.W.1 AS RECORDED BY THE COURT (CERTIFIED COPY OBTAINED) EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE PLAINT AMENDMENT APPLICATION I.A. NO.657 OF 2010 IN O.S. NO.171 OF 2008 HONOURABLE SUB COURT, NORTH PARAVUR. EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE OBJECTION FILED BY DEFENDANT IN I.A. NO.657 OF 2010 IN O.S. NO.171 OF 2008 HONOURABLE SUB COURT, NORTH PARAVUR. EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE ORDER DATED 27.3.2010 IN I.A. NO.657 OF 2010 IN O.S. NO.171 OF 2008. RESPONDENT'S EXHIBITS: ----------------------------------- NIL THOMAS P.JOSEPH, J. ==================================== W.P(C) No.15595 of 2010 ==================================== Dated this the 15th day of June, 2010 J U D G M E N T Defendant in O.S. No.171 of 2008 of the court of learned Additional Sub Judge, North Paravur is the petitioner in this Writ Petition challenging the order for amendment of plaint on I.A. No.657 of 2010. The suit for a decree for specific performance of Ext.P1, agreement for sale. Petitioner filed Ext.P4, written statement opposing the claim made by respondent. It is not disputed before me that I.A. No.657 of 2010 for amendment of the plaint (Ext.P6) was moved after the trial had commenced. It is seen from Ext.P8, order dated 27.03.2010 that learned Sub Judge has disposed of the I.A. in the following lines, “Petition is allowed without prejudicing to the plaintiff's right to raise the question of limitation”. (Obviously the reference to plaintiff is to the defendant who was to oppose the application for amendment) 2. Contention of learned counsel for petitioner is that in W.P(C) No.15595 of 2010 -: 2 :- spite of the fact that application was preferred after commencement of trial and the proviso to Order VI Rule 17 of the Code of Civil Procedure (for short, “the Code”) squarely applied, learned Sub Judge has not adverted to the said proviso and the binding decisions on the point before allowing amendment without even referring to the question whether respondent in spite of exercise of due diligence was not able to seek amendment of the plaint before trial of the case commenced. Learned counsel placed reliance on the decision in Vidyabai and Others v. Padmalatha and Another (2009 SAR (Civil) 149) where in paragraph 7, it is stated that the proviso is couched in a mandatory form and the court's jurisdiction to allow such an application is taken away unless the conditions precedent are satisfied, viz., that the court must come to a conclusion that in spite of due diligence parties could not have raised the matter before commencement of the trial. In this case the order impugned does not show that learned Sub Judge had satisfied himself that in spite of due diligence respondent was not able to seek amendment of the plaint before commencement of trial. For the said reason the order under challenge cannot be sustained. 3. However that does not mean that the application for amendment should end in a dismissal. Learned Sub Judge has to W.P(C) No.15595 of 2010 -: 3 :- consider the application afresh in the light of the proviso to Order VI Rule 17 of the Code. It will be open to the respondent to file supplementary affidavit if any, to show that in spite of exercise of due diligence he was not able to file the application before commencement of trial. Needless to say that petitioner will get opportunity to oppose the averments in such affidavit if filed. Resultantly, this Writ Petition is allowed. The order under challenge is set aside. I.A. No. 657 of 2010 is remitted to the court below for fresh disposal in the light of the observations made above. THOMAS P. JOSEPH, JUDGE. vsv