IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 OP(C).No. 1226 of 2010(O) ----------------------------------- OS.1125/2009 of II ADDL.MUNSIFF COURT II, ERNAKULAM .................... PETITIONER (S): ------------------------------ M/S.CONFIDENT PROJECTS INDIA LIMITED, CONFIDENT HOUSE, BANGALORE-560068 REPRESENTED BY ITS GENERAL MANAGER. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENT(S): -------------------------- EDWARD, AGED 55 YEARS, S/O.LATE VAREETHUKUTTY, MANNAPARAMBIL HOUSE, MARADU DESOM, MARADU VILLAGE, MARADU P.O. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. ----------------------------------------- O.P(Civil). NO. 1226 OF 2010 ---------------------------------------- Dated this the 21st day of December, 2010. JUDGMENT This petition is in challenge of Ext.P7, order allowing amendment of plaint so as to correct the name of defendant in the suit and in the cause title and the body of plaint. Respondent/plaintiff sued “Confident Group, S.A Road Janatha, Vyttila” for fixation of boundary between plaint A and B schedule items and other reliefs. Summons was issued to the defendant in the said address. Appearance was made in the suit on behalf of “M/s. Confident Projects India Ltd., Bangalore”. It filed Ext.P3, written statement raising contentions intended at non suiting the respondent. In the written statement it is contended that there is no such proprietorship or company by the name 'M/s. Confident Group'. In paragraph 6 of written statement petitioner (M/s. Confident Projects India Ltd.) contended that it is M/s. Confident Projects India Ltd., Bangalore which purchased the property involved in the suit from one Sajan Jose and not 'Confident Group' (named as defendant in the plaint). Similar contentions are raised in paragraphs 7 to 11 of Ext. P3, written statement as well. The written statement is verified by the General Manager on behalf of “M/s. Confident Projects India ltd., Bangalore”. Respondent filed I.A O.P(Civil). NO. 1226 OF 2010 2 No. 5314 of 2010 for amendment of plaint to correct the name of defendant from “Confident Group, S.A Road, Janatha Vyttila” to “M/s. Confident Project India Ltd, Confident Groups, Bangalore”. That application was opposed by petitioner contending that attempt is to substitute the sole defendant with another which is not permissible. Learned Munsiff has rejected the contention and allowed I.A No.5314 of 2010 by Ext.P7, order which is under challenge. 2. Learned counsel contends that procedure adopted by the learned Munsiff is not correct. According to the learned counsel, notice of I.A.No.5314 of 2010 should have been given to M/s. Confident Projects India Ltd., Bangalore before allowing the amendment. It is also contending that it is not a case of correction of name of defendant but substituting the sole defendant with another without a cause of action. Learned counsel contended that the proper course available to the petitioner was to withdraw the suit with permission and file fresh suit against the proper defendant. 3. I am afraid, I am unable to give assent to the argument advanced by learned counsel. It is not as if M/s. Confident Group India Ltd., Bangalore had no appearance in the suit as seen from the written statement which I have referred to above, its O.P(Civil). NO. 1226 OF 2010 3 verification made on behalf of M/s. Confident Projects India Limited and the contentions raised on behalf of the said Company. The said company has requested to non-suit respondent. Thus, it is clear that it is not a question of disputed identity of defendants but a wrong description of the real defendant against which respondent wanted to proceed. The wrong description of defendant in the cause title could be corrected invoking Sec.153 of the Code of Civil Procedure (for short, “the Code”) and in the present case, the body of plaint also carries wrong description of the defendant and hence the appropriate course was to seek amendment under Rule 17 of Order VI of the Code. Even in an extreme case where the suit was instituted in the name of a wrong person who had no cause of action, this court held in A.V Kelankutty Vs. Nayadi and Ors. (1988(2) KLJ 819) that the court could, invoking Rule 10 of Order I of the Code order substitution of the right person. I do not find any infirmity in the order under challenge requiring interference. Petition fails. It is dismissed. THOMAS P. JOSEPH, JUDGE mns