IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 OP(C).No. 479 of 2011(O) ---------------------------------- OS.280/2006 of MUNSIFF COURT,ATTINGAL .................... PETITIONER ------------------ ABDUL RASHEED,S/O.ABDUL KARIM, AGED 55 YEARS,RESIDING AT PUTHEN VEEDU, PANANTAMUKKU,KEEZHATTINGAL VILLAGE. BY ADV. SRI.M.BALAGOVINDAN RESPONDENT(S): ---------------------------- 1. SOBHANA,W/O.LATE PUSHPARAJAN, PUTHENVILA VEEDU,KEEZHATTINGAL VILLAGE, NOW RESIDING AT S.R.NIVAS,KADAKKAVOOR, KADAKKAVOOR VILLAGE 695 306. 2. SILPA,D/O.LATE PUSHPARAJAN, PUTHENVILA VEEDU,KEEZHATTINGAL VILLAGE, NOW RESIDING AT S.R.NIVAS,KADAKKAVOOR, KADAKKAVOOR VILLAGE 695 306. 3. ABI,S/O.PUSHPARAJAN, PUTHENVILA VEEDU,KEEZHATTINGAL VILLAGE, NOW RESIDING AT S.R.NIVAS,KADAKKAVOOR, KADAKKAVOOR VILLAGE 695 306. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OPC. NO.479/20111 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 280/2006 DTD. 11.9.2006. P2:- COPY OF THE WRITTEN STATENENT DT. 22.9.2010. P3:- COPY OF THE AMENDMENT APPLICATION DT.D 10.1.2011. P4:- COPY OF THE ORDER REJECTING AMENDMENT APPLICATION IN IA. 117/2011 IN OS. 280/2006 DT.D 13.1.2011. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.479 of 2011 -------------------------------------- Dated this the 19th day of November, 2011. JUDGMENT Respondents are served but there is no response. 2. This Original Petition is in challenge of Ext.P4, order dated 13.01.2011 passed by the learned Munsiff, Attingal on I.A.No.117 of 2011 in O.S.No.280 of 2006. 3. That was an application for amendment of the plaint. Learned Munsiff took the view that amendment if allowed would take away the admission made by petitioner in the in the plaint which the court cannot approve and that serious prejudice will be caused to the respondents if the amendment prayed for is allowed. Accordingly, the application was dismissed. Learned counsel for petitioner contends that the order cannot be sustained and that amendment does not involve taking away any admission made by the petitioner. It is submitted that since the application for amendment is made even before trial of the suit commenced, no prejudice will be caused to the respondents by allowing the amendment. 4. According to the petitioner, predecessor-in-interest of respondents borrowed `50,000/- from him on 01.12.2003 and issued cheque for re-payment of the said amount. He died on 01.01.2004. As respondents did not pay the OP(C)No.479/2011 2 amount, petitioner filed the suit against them. In paragraph 2 of the plaint it is stated that predecessor-in-interest of respondents borrowed `50,000/- from petitioner on 01.12.2003 at the residence of petitioner assuring prompt payment within two months. What is sought to be incorporated by amendment is that the said amount was paid to the predecessor-in-interest of respondents by way of cheque which he encashed. 5. It is true that in paragraph 2 of the plaint what is stated is that predecessor-in-interest of respondents received the sum of `50,000/- from petitioner at the residence of the latter. But no question of 'admission' is involved as respondents are denying the whole transaction pleaded by petitioner. To say that the amount was received by the predecessor-in-interest of respondents by way of cheque cannot be said to take away any 'admission' allegedly made by petitioner. In that view of the matter I am inclined to think that the order passed by the learned Munsiff is not correct. Petitioner should have been given an opportunity to amend the plaint since as submitted by the learned counsel, the application for amendment is made before trial of the suit commenced and hence no prejudice will be caused to the respondents. I must also bear in mind that respondents will get an opportunity to file additional written statement in answer to the amended plaint. Resultantly this Original Petition is allowed. Ext.P4, order is set OP(C)No.479/2011 3 aside and I.A.No.117 of 2011 in O.S.No.280 of 2006 of the court of learned Munsiff, Attingal is allowed. Petitioner shall carry out amendment in the plaint within two weeks from the date on which a copy of this judgment is received in the trial court. On such amendment being carried out, respondents will get opportunity to file additional written statement in answer to the amended plaint. I.A.No.18339 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks