IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 WP(C).No. 14516 of 2009(O) -------------------------- AGAINST THE ORDER IN IA 2275/07 IN OS.189/2007 of PRL.SUB COURT,KOTTAYAM .................... PETITIONER(S): ------------------------ INDHIRABHAI AMMA @ INDHIRA JAYAKUMAR, KUZHUPPIL (H), KULASEKHARAPURAM KARA, KADUTHURUTHY VILLAGE. BY ADV. MR.CIBI THOMAS RESPONDENT(S): ---------------------------- 1. ANTONY KURIAN, KURICHYAPARAMBIL, KADUTHURUTHY KARA, KADUTHURUTHY VILLAGE. 2. THE CATHOLIC CYRIAN BANK, KADUTHURUTHY BRANCH. R1 BY ADVS.MR.SAIGI JACOB PALATTY, MR.SAJIKUMAR.K.K. R2 BY ADVS.MR.K.ANAND, SMT.LATHA KRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.14516/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.189/07 OF SUB COURT, KOTTAYAM. P2: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.1334/07. P3: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN I.A.1334/07. P4: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.2275/07. P5: COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT DTD. 27/05/2008. P6: COPY OF THE ORDER IN I.A.2275/07 IN O.S.189/2007 OF PRL.SUB JUDGE, KOTTAYAM. P7: COPY OF THE AGREEMENT DTD. 20/07/1996. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.14516 OF 2009 -------------------------- Dated this the 26th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue a writ of certiorari calling for the records relating to Ext.P6 and quash the original of the same. ii) Issue a writ directing the principal Sub Judge, Kottayam to allow I.A No. 2275/2007 in O.S No.189/1997 in the interest of justice. iii) To grant such other reliefs prayed for from time to time including cost of these proceedings. W.P.(C).No.14516 OF 2009 Page numbers 2. Petitioner is the plaintiff in O.S No.189 of 2007 on the file of the Principal sub Court, Kottayam. Suit is one for specific performance of an agreement of sale. The case of the plaintiff in brief is that the first defendant had executed an agreement of sale over the suit property and since there is default on his part to complete that agreement, a decree for specific performance has to be passed. The second defendant, a bank, was also impleaded in the suit seeking a relief that whatever charge over the property, in favour of second defendant has to be got relieved by payment from the sale price due to the first defendant. An application for amendment was later moved by the plaintiff to contend that the sale effected in favour of the second defendant bank in respect of the suit property has to be declared as not binding on the plaintiff. That amendment was opposed by the second defendant bank. The learned Sub Judge after hearing both W.P.(C).No.14516 OF 2009 Page numbers sides dismissed the application for amendment vide Ext.P6 order. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Learned counsel, pointing out some mistakes in Ext.P6 order of the court below, expressing the view that written statement had been filed by the second defendant which in fact was not filed contended that there was no application of mind or proper appreciating of the amendment moved by the plaintiff. In Ext.P6 order, the court below has expressed a view that the proposed amendment sought for by the plaintiff was to set aside the judgment and decree passed in the suit in favour of the second defendant bank. Actually no such relief was claimed by the proposed amendment is the submission of the counsel. So W.P.(C).No.14516 OF 2009 Page numbers much so, without applying the mind and appreciating the amendment in the proper perspective it was dismissed is the grievance canvassed by the learned counsel for the petitioner. On the other hand, learned counsel for the second respondent bank contended that the suit property was outstanding on a mortgage with the bank and on default of the first defendant, the debtor, after getting a decree in the suit, the property was brought to sale and the bank purchased that property in the auction held in the year 2001 and delivery was obtained through court in November 2006. When that be the case, the present suit instituted by the petitioner contending that an agreement of sale was entered with the first defendant in July 1996 and instituting the suit after the property was sold through court in favour of the second defendant bank, according to the counsel, lack bonafides. Perusing Ext.P6 order passed by the court below dismissing the application for amendment with reference to the submissions made by the counsel on W.P.(C).No.14516 OF 2009 Page numbers both sides and also the other materials tendered in the writ petition, I find no reason to interfere with P6 order. In a suit for specific performance, the court is concerned only with the question whether performance of the agreement, an equitable relief, has to be granted or not. Where a relief outside the purview of specific performance is sought for in that suit by way of amendment it will change the character of the suit. On that solitary ground itself, the proposed amendment sought for by the plaintiff was not entertainable without going into the other aspects involved. That being so the proposed amendment of the plaintiff was not entertainable. Writ petition lacks merit, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv