IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 WP(C).No. 15644 of 2006(K) ----------------------------------------- PETITIONER: --------------------- STAR SYDICATE, PARTNERSHIP FIRM, REP. BY MANAGING PARTNER P.M. JONES, BABAS COMPLEX, KACHERI DESOM, ERANELLOOR, THALAPPILLI. BY ADV. SRI. M.C. SEN (Sr.) SRI.M.P.SREEKRISHNAN RESPONDENT: ------------------------ JAYAGOVINDN, S/O.VADAKOOTT, NELLIPPARAMBIL, KRISHNANEZHUTHACHAN, AVINISSERY VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.V.CHANDRA MOHAN - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.15644/2006 K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF JUDGMENT DD. 6/12/05 IN WP(C) NO.38368/03 OF THIS HONOURABLE COURT. EXT.P2: COPY OF PLAINT IN O.S.521/97, PRL.SUB COURT, TRICHUR. EXT.P3: COPY OF APPLICATION FOR AMENDMENT DD. 15/11/2005. EXT.P4: COPY OF COUNTER AFFIDAVIT FILED BY THE PETITIONER. EXT.P5: COPY OF APPLICATION I.A.3989/03. EXT.P6: COPY OF ORDER IN I.A.5585/2005. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 15644 OF 2006 ------------------------------------------ Dated this the 22nd day of August, 2008 JUDGMENT Petitioner is the defendant and respondent the plaintiff in O.S.521 of 1997 on the file of Sub Court, Thrissur. Suit was filed to set aside registered sale deed 6592/1995 executed by respondent in favour of the petitioner. According to the petitioner sale deed was executed as security for the loan obtained and therefore petitioner did not derive any title to the property and it is to be set aside. I.A.5585 of 2005 was later filed for amendment of the plaint under Rule 17 of Order VI of Code of Civil Procedure. By the amendment, respondent sought to delete the relief of setting aside the document and instead sought to introduce the relief of specific performance of an oral agreement allegedly entered between the respondent and petitioner company, on the date of execution of the sale deed. The petition was opposed by the petitioner contending that the very nature of the suit is sought to be altered and cause of action for the suit is not the same and the suit is virtually a new suit WP(C)15644/06 2 which is barred by time and there is no bona fide in the amendment and hence it is to be dismissed. Under Ext.P6 order, learned Sub Judge allowed the application. This petition is filed under Article 227 of Constitution of India to quash Ext.P6 order. 2. Learned senior counsel appearing for petitioner and learned counsel appearing for respondent were heard. 3. Ext.P3, the application for amendment, shows that by the amendment respondent has given up the original relief of setting aside the sale deed and instead substituted the new relief of specific performance of an oral agreement. The plaint does not contain any recital about the alleged oral agreement dated 29.8.1995. In fact existence of the alleged agreement is disclosed for the first time in the amendment application. There is force in the submission of the learned senior counsel that learned Sub Judge was not justified in allowing the application without considering the question of limitation. True, in view of the later decisions of the Apex Court in Puran Ram v. Bhaguram & Another (AIR 2008 SC 1960) and Pankaja & Anr. v. Yellappa (Dead) by LRs. & Ors (2004 (6) SCC 415). It is not necessary to decide whether the amendment sought to WP(C)15644/06 3 be introduced is barred by time as that question could be decided in the suit. But while allowing the application for amendment, unless the question when the amendment will come into effect is not decided specifically provided it would relate back to the date of institution of suit. In such circumstances, failure to consider the question whether the amended plaint would come into effect, from the date of suit or only from the date of allowing the amendment application, prejudice will be caused to the petitioner. Unfortunately learned Sub Judge did not consider this aspect while allowing the application. Similarly, question of substituting the original cause of action by a subsequent one was also not borne in mind while allowing the application. As these aspects are relevant and necessary were not considered. Hence Ext.P6 order is quashed. 4. Learned Sub Judge is directed to dispose Ext.P3 application afresh after hearing the parties. Even if the amendment application is to be allowed, learned Sub Judge must decide whether the amended plaint would relate back to the date of suit or only from the date of amendment. While deciding these aspects learned Sub Judge must also bear in mind that the WP(C)15644/06 4 amendment sought for relate to specific performance of an oral agreement. It was not even pleaded originally and is sought to be introduced only by the amendment sought for. Writ petition is disposed of accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-