IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 OP(C).No. 724 of 2010(O) ------------------------------ IA.3328/2010 IN OS.498/2005 of ADDL.SUB COURT,KOLLAM .................... PETITIONERS/DEFENDANTS --------------------------------- 1. A.SALEEM, S/O.ALIYARUKUNJU, AGED 50, RESIDING AT SWADIYA GARDENS, KOCHUVILA MUKKU, ALAMKODE POST, ATTINGAL FROM 'DONE', SANKAR NAGAR- 223, NEMOM WARD, KAIMANAM POST, THIRUVANANTHAPURAM 2. RUHAILA BEEVI, D/O.RAHUMA BEEVI, AGED 42 YEARS, RESIDING AT SWADIYA GARDENS, KOCHUVILA MUKKU, ALAMKODE POST, ATTINGAL FROM 'DONE', SANKAR NAGAR-223, NEMOM WARD, KAIMANAM POST, THIRUVANANTHAPURAM. 3. SABOORA BEEVI, D/O.RAHUMA BEEVI, AGED 48 YEARS, RESIDING AT DARUL MUHABEEN, KARICHA MANDAPAM, NEMOM POST, THIRUVANANTHAPURAM BY ADVS. SRI.R.KISHORE SRI.G.HARIPRASAD SRI.ARUN BABU RESPONDENT(S): PLAINTIFF --------------------------------- SATHYANANDAN, S/O.KOCHURAMAN, AGED 59 YEARS, RESIDING AT SUVARNALAYAM, ASRAMAM MIDDLE WARD, KOLLAM. BY ADVS. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 724/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. NO.498/2005 IN THE FILE OF THE ADDL. SUB COURT, KOLLAM. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S. NO.498/2005 IN THE FILE OF THE ADDL. SUB COURT, KOLLAM. P3: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S. NO.476/2005 IN THE FILE OF THE ADDL. SUB COURT, KOLLAM. P4: COPY OF THE AMENDED WRITTEN STATEMENT IN O.S. NO.498/2005 IN THE FILE OF THE ADDL. SUB COURT, KOLLAM. P5: COPY OF THE I.A. NO.4504/2010 IN O.S. NO.498/2005 IN THE FILE OF THE ADDL. SUB COURT, KOLLAM. P6: COPY OF THE I.A. NO.3328/2010 IN O.S. NO.498/2005 IN THE FILE OF THE ADDL. SUB COURT, KOLLAM. P7: THE EXTRACT OF THE ORDER DATED 12/11/2010 PASSED BY THE ADDL. SUB COURT, KOLLAM IN I.A. NO.3328/2010 IN O.S.NO.498/05 IN THE FILE OF THE SAID COURT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.724 of 2010 --------------------------------------- Dated this 20th day of July, 2011 JUDGMENT Defendants in O.S.No.498 of 2005 of the Court of learned Additional Sub Judge, Kollam are the petitioners before me challenging Ext.P7, order disallowing the prayer for amendment of written statement sought vide I.A.No.3328 of 2010. Respondent sued petitioners for recovery of money alleging that as per a demand promissory note executed by petitioners on 28.09.2001 and 03.04.2004 a sum of `.5,92,026/- with interest @12% per annum is due from petitioners. Petitioners filed Ext.P2, written statement denying the entire transaction pleaded by the respondent. Later, petitioners were permitted to introduce a different version regarding the alleged transaction as per order dated June 29, 2010 on I.A.No.1828 of 2010. The written statement was allowed to the amended. Then came I.A.No.3328 of 2010 whereby petitioners wanted to delete the contention in paragraph 5 of the amended written statement wherein they had denied signature in the disputed documents and wanted to plead that they admitted signature but, not the hand writing. They also wanted to correct the date mentioned in paragraph 3 of the O.P(C).No.724 of 2010 -: 2 :- written statement from 03.04.2004 to 09.04.2004. Learned Sub Jude dismissed that application observing that by the proposed amendment petitioners wanted to delete admission in the written statement that the signature is not affixed by them, written statement was allowed to be amended as per order dated July 06, 2010 and that the proposed amendment would amount to withdrawal of an admission which would prejudice the respondent. Learned counsel submitted that no question of admission is involved in the amended written statement since petitioners had denied the signature but, now they wanted to contend that they admit the signature but not the hand writing. Learned counsel for respondent contended that attempt of petitioners is to introduce a new case which they did not have at the time of filing the written statement and even when the written statement was allowed to be amended by order dated 29.06.2010. 2. In Ruhaila Beevi and Ors. Vs. Suvarna Satyan (2011(2) KHC 911) this Court held that when defendants denied execution of demand promissory note, the denial did not amount to any admission as understood in Sec.17 of the Evidence Act. I am inclined to agree with that view. O.P(C).No.724 of 2010 -: 3 :- 3. In the written statement as amended, petitioners denied signature in the disputed document but that does not amount to an admission. Now by amendment, they wanted to say that they admit the signature but deny the hand writing. Other amendment sought for is regarding the date mentioned in paragraph 3 of the written statement. I must bear in mind that Courts must be liberal in allowing amendment of written statement. Trial in the case has not commenced. In these circumstances I think to hold that learned Sub Judge was not correct in disallowing the prayer for amendment in the written statement. Resultantly this original petition is allowed in the following lines: (i) Ext.P7, order dated November 12, 2010 on I.A.No.3328 of 2010 of the Court of learned Sub Judge, Kollam is set aide. That application will stand allowed. (ii) Petitioner shall carry out amendment in the written statement as prayed for in I.A.No.3328 of 2010 within two weeks from the date on which a copy of this judgment is received in the trial court. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-