IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 OP(C).No. 1156 of 2011(O) ------------------------- AGAINST THE ORDER DATED 18/03/2011 IN IA.553/2011 IN OS.84/2010 of PRL.MUNSIFF COURT, KOCHI .................... PETITIONER/PETITIONER --------------------------------------- SOPHY MATHEW, AGED 53 YEARS,W/O.MATHEW, KAVALAKKAL HOUSE, PERUMPADAPPU. BY ADVS. SRI.A.X.VARGHESE SRI.A.V.JOJO RESPONDENT(S): ------------------------- MAKKOM FERNANDEZ, AGED 55 YEARS, S/O.RAYMOND FERNANDEZ, H.NO.14/1029, NAZRATH, THOPPUMPADY-682002. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P.BHAVADASAN, J. ---------------------------- O.P(C).No. 1156 of 2011 --------------------------------- Dated this the 22nd day of March, 2011 JUDGMENT In this Original Petition filed under Article 227 of the Constitution of India, the reliefs sought for are as follows: a. Permanent prohibitory injunction restraining the defendant and their men and agents from making any disturbance or threat or any act in similar nature against the peaceful possession an enjoyment of the plaint schedule property by the plaintiff or her agents or men. b. Directing the defendant to pay the entire cost of the suit. c. Issue such other relief a plaintiff may pray for and this Hon'ble court deems fit and proper to grant in the interest of justice and in the circumstances of the case. 2. The petitioner is the plaintiff in O.S.No.84/2010 before the Principal Munsiff's Court, Kochi. It is stated that the plaintiff and defendant entered into an agreement regarding the plaint schedule property whereby the defendant agreed to sell and plaintiff agreed to purchase 5 cents of property, for a total sale consideration of Rs.3,75,000/-(Rupees three lakhs seventy five thousand only) within a period of six months from the date of the contract. The petitioner claims that an advance amount of Rs.2,05,000/-(Two lakhs five thousand only) was paid. It is also O.P(C).No. 1156 of 2011 2 stated that the respondent had handed over the plaint schedule property to the petitioner. 3. The defendants/respondents had disputed the agreement for sale claimed by the plaintiff. The defendants case is that he had borrowed a sum of Rs.80,000/- from the petitioner and so called document was executed and she is claimed to have been put in possession. When the respondent tried to alienate the suit property to another person the suit for injunction was laid. Much later IA 553/2011 was filed by the petitioner seeking the amendment of the plaint incorporating the prayer for specific performance or return of the advance amount. The objection was taken by the respondent in the Original Petition. 4. The lower court found that could not be allowed since that would change the nature of the suit and that cause of action is different and so the suit cannot tie before the said court. It is also found that it was after proof affidavit has been filed by the plaintiff that the petition was moved. It was accordingly dismissed. O.P(C).No. 1156 of 2011 3 5. The learned counsel for the petitioner pointed out that the court below was not right in dismissing the petition for amendment. He relied on the decisions reported in (1989(1) KLJ Kunheedu V. Marakkar & others and (1987 (1) KLT 223)Yamuna V. Bhavani contending that the amendment sought to raise the real issue, for that purpose amendment is essential for proper disposal of the suit. It is also pointed out that even if the prayer sought for in the application are barred by limitation still it ought to have been allowed. 6. Though one cannot take exemption to the principle laid down in the discussion cited by the petitioner, the question is whether it is applicable to the facts in this case. The present suit was one for injunction. After the proof affidavit was filed, the petitioner laid petition for amendment. The amendment sought for was to incorporate the prayer for specific performance or in the alternative, returns of advance amount. 7. The petitioner claims to have been put in possession of the property. The written statement was filed long ago. Trial had commenced and affidavit in chief was filed by the petitioner. It O.P(C).No. 1156 of 2011 4 is thereafter the application is moved. There can be no doubt that by the amendment the character of the suit is changed and the cause of action is also different. It may be true that the amendment being allowed, the suit may not lie before that court, may not be a ground to decline amendment. But as already noted complexion, character and nature of the suit gets changed, hence the court below was justified in rejecting the application. This petition is without merits, it is accordingly dismissed. P.BHAVADASAN, JUDGE. ln