IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 WP(C).No. 295 of 2008(I) ------------------------ (0.S.NO.146/2005 OF SUB COURT, KOCHI) PETITIONER: ------------ M/S ALPHONSA CASHEW INDUSTRIES PUTHOOR P.O.,KOLLAM 691 507 REP. BY ITS PROPRIETOR -BABU OOMMEN S/O. G. OOMMEN,AGED 48 YEARS BY ADV. SRI.JOBY JACOB PULICKEKUDY RESPONDENTS: ------------- 1. M/S SWATHY EXPORTS KOLLAM REP. BY ITS PROPRIETRESS MRS. SHEELA SREEKUMAR AGED ABOUT 38 YEARS,W/O. SREEKUMAR PULARI, MUNDAKKAL WEST, KOLLAM 691 001. 2. PARGAN SINGAPORE PTE.LTD.3 SHENTON WAY 20-04,SINGAPORE 068805,REP. BY ASSISTANT VICE PRESIDENT. 3. BRIGHT AND ASSICIATES,P.O.BOX NO.1008 ASRAMAM, KOLLAM -2 REP. BY ITS MANAGING PARTNER 4. PIERCE LESSLIE INDIA LTD BRISTOW ROAD,WILLINGDON ISLAND, COCHIN 682 003 REP. BY ITS MANANGING DIRECTOR. 5. M/S. AVIVA LTD 4, SHENTON WAY 21-01 SGX CENTRE 2, SINGAPORE 068807 REP. BY THE PRESIDENT, CHAIRMAN 6. SAF MARINE INDIA PVT LTD AMALGAM HOUSE 24,24/604 PLOT NO.9 BRISTOW ROAD, WILLINGDON ISLAND KOCHI-682 003, REPRESENTED BY THE MANAGING DIRECTOR. 7. COCHIN POST TRUST, COCHIN-9 REP. BY ITS CHAIRMAN. 8. INDIA GATEWAY TERMINAL PRIVATE LTD WILLINGDON ISLAND, COCHIN-9 REP. BY ITS GENERAL MANAGER. 9. MANAGER P & O NEDLLOYD (INDIA) PVT.LTD NIHAR HOUSE, BRISTOW ROAD, WILLINGDON ISLAND, COCHIN-682 003. 10. GREAT HIMALAYAN PTE LTD 63, ROBINSON ROAD, 07-04, AFRO ASIA BUILDING SINGAPORE-068894,REP. BY ITS POWER OF ATTORNEY HOLDER PADMANABHA MENON, RESIDING AT 39/211 A NUPURAM, MONASTERY ROAD, COCHIN-11 11. THE COMMISSIONER OF CUSTOMS CUSTOMS HOUSE, WILLINGDON ISLAND, KOCHI. 12. THE MANAGER CATHOLIC SYRIAN BANK,MAIN ROAD ,KOLLAM. BY ADV.SMT.S.KARTHIKA FOR R1 SRI.PAUL MATHEW FOR R2 SRI.K.P.VIJAYAN FOR R6 SRI.E.K.NANDAKUMAR (SC) FOR R7 SRI.V.J.MATHEW FOR R9 SRI.PETER THARAKAN FOR R BY ASST.SOLICITOR GENERAL SRI.P. PARAMESWARAN NAIR FOR R11 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1:- True photocopy of the original plaint as O.S.No.146/05 before the Subordinate Judges Court, Kochi. Ext.P2:- True photocopy of the amendment petition filed by the 1st respondentS Ext.P3:- True copy of the counter affidavit to the amendment petition filed by the petitioner. Ext.P4:- True copy of the order dated 12.7.07 in I.A.No.1425/06 in O.S.No.146/05. /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 295 OF 2008 =========================== Dated this the 13th day of June, 2008 JUDGMENT Additional 10th defendant in O.S.146/2005 on the file of Sub Court, Kochi is the petitioner. First respondent is the plaintiff and other respondents the other defendants in the suit. Suit was filed for realisation of Rs.28,26,749/- as value of the damages of cashew nuts delivered to first respondent as per import contract dated 27.1.2005. Along with the suit, first respondent filed an application under Order XXXVIII Rule 5 of Code of Civil Procedure for attachment of 12 containers lying at Cochin Port Trust alleging that it is owned by first defendant. After an order of attachment was passed nineth defendant appeared before the trial court and got itself impleaded stating that they are the real owners of the goods attached. It was contended by 9th defendant that they are holding the real original bill of lading W.P.(C)295/2008 2 and other supporting documents to prove their title with respect to 12 containers and the bill of lading was issued by 8th defendant the principal carrier which shows that defendant No.9 is the actual shipper/owner of the goods and the consignee of Catholic Syrian Bank and notified party is M/s.Alphonsa Cashew Industries,Quilon the petitioner herein. Learned Sub Judge thereafter lifted the order of attachment accepting the contention of the 9th defendant. That order was challenged before this Court in FAO 242/2005. As per judgment dated 18.11.2005 appeal was disposed. It was agreed to by all the parties that trial in the suit can be expedited and all the disputes with regard to the title of the property attached can be considered in the suit. The appeal was disposed making it clear that question of title to the property attached is also to be decided in the suit untrammelled by the observations made by the trial court. Thereafter first respondent filed Ext.P2 petition under Rule 17 of Order VI of the W.P.(C)295/2008 3 Code to amend the plaint incorporating six paragraphs in the plaint in addition to an additional prayer seeking a decree to declare that first defendant is the owner of the attached cargo and to pass a judgment for realisation of the amount from 10th defendant as the cargo was removed by him. Ext.P3 counter affidavit was filed by petitioner contending that first respondent is attempting to convert the very nature and character of the suit and 10th defendant has nothing to do with the plaint claim and the relief sought for by amending the plaint as well as the allegations sought to be introduced in the plaint are alien to the original claim raised and they are in respect of subsequent cause of action and therefore petition cannot be allowed. 2. Learned Sub Judge under Ext.P4 order allowed the application. It is challenged in this petition filed under Article 227 of the Constitution of India. 3. Learned counsel appearing for petitioner W.P.(C)295/2008 4 and respondents were heard. 4. Learned counsel appearing for petitioner supported by learned counsel appearing for respondent No.2 and 9 and argued that the fact that Division Bench of this court allowed the dispute regarding title to the attached properties settled in the suit does not mean that application filed to amend the plaint should be allowed. Learned counsel argued that in view of the principles laid down by the Apex Court in various decisions trial court should not have allowed the application for amendment which introduces a new case on a subsequent cause of action and therefore Ext.P4 order is to be quashed. Learned counsel appearing for first respondent argued that in the light of the judgment of this court in the FAO trial court rightly allowed the application for amendment. It was pointed out that when this court permitted or rather directed the trial court to decide title to the attached property, it is necessary to incorporate the pleadings, sought for by the W.P.(C)295/2008 5 amendment, and in such circumstance, there is no illegality or irregularity or any other circumstance warranting interference in Ext.P4 order and the petition is to be dismissed. 5. True, in the suit title to the attached property as such is not the real matter in issue. The title to the attached property is directed to be settled by this court in the FAO, because of the contentions of the raised by first respondent that though the order of attachment was lifted by the trial court upholding the contention of the 9th defendant that the cargo is owned by the 10th defendant, but plaintiff maintained that it was created later and first defendant is the real owner. It is to settle that controversy this court, as agreed to by all the parties including the petitioner herein, directed trial court to decide the dispute regarding the title of the attached property also. Viewed from that angle, I do not find any illegality or irregularity om Ext.P4 order on the facts and circumstance of this W.P.(C)295/2008 6 particular case. Learned counsel appearing for petitioner and supported by the other counsel for defendants argued that trial court is proceeding as if title to the attached property is the main issue in the suit. I do not feel that on the pleading the trial court would proceed as if that dispute is the main issue. It is only a subsidiary issue and that too had arisen because of the subsequent events. In such circumstance, petition is dismissed. Petitioner and other defendants are entitled to take up all the contentions raised herein before the trial court. In the light of the amendment allowed, the trial court has to afford sufficient opportunity to the parties to adduce evidence. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006