IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 20869 of 2009(O) --------------------------------------- OS.300/2007 of PRINCIPAL SUB COURT,PARAVUR .................... PETITIONER(S): ---------------------- SHAJAN ANTONY,S/O.BAVELI ANTONY, MISSION QUARTERS DESOM, CHEMBUKKAVU VILLAGE, THRISSUR TALUK. BY ADV. MR.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): ------------------------ 1. ANTONY @ ANTHAPPAN,S/O.BAVELI AVARA, CHIRAKKAKAM KARA,VARAPUZHA VILLAGE, PARAVUR TALUK,ERNAKULAM DISTRICT. 2. PAUL ANTONY @ THANKACHAN,S/O.ANTONY, BAVELI HOUSE,CHIRAKKAKAM,VARAPUZHA DESOM, P.O.VARAPUZHA,PARAVUR TALUK. 3. ABRAHAM BAVELI @ AVARACHAN,S/O.ANTONY, BAVELI HOUSE,VAZHAPPILLY LAIN, KURIACHIRA DESOM,THRISSUR TALUK. 4. SHAIJA,D/O.ANTONY AND W/O.MANUVAL, MULLOOR HOUSE,KURIYACHIRA UNITY FIRST LAIN, THRISSUR. BY ADV. MR.A.X.VARGHESE BY ADV. MR.A.V.JOJO THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 20869/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.300/2007 BEFORE THE PRINCIPAL SUB COURT, NORTH PARAVUR. EXT.P2: COPY OF THE AGREEMENT DATED 30/05/2006. EXT.P3: COPY OF THE SALE DEED NO.2722/2007 OF ALANGAD S.R.O. EXT.P4: COPY OF THE SALE DEED NO.2723/2007. EXT.P5: COPY OF THE SALE DEED NO.2724/2007. EXT.P6: COPY OF THE SETTLEMENT DEED NO.2725/2007. EXT.P7: COPY OF THE WRITTEN STATEMENT IN O.S. NO.300/2007. EXT.P8: COPY OF THE ORDER DATED 10/07/2008 PASSED BY PRINCIPAL SUB COURT, NORTH PARAVUR. EXT.P9: COPY OF THE I.A.2958/2008 IN O.S.300/2007. EXT.P10: COPY OF THE ORDER DATED 19/06/2009 IN I.A.2958/2008 IN O.S.300/2007 OF PRINCIPAL SUB COURT, NORTH PARAVUR. EXT.P11: COPY OF THE I.A.2581/2008 IN O.S.300/2007. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.20869 OF 2009 -------------------------- Dated this the 17th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Set aside Ext.P8 order dated 30/07/2008 passed by the Principal Sub Judge, North Paravur in O.S No.300/2007. ii) Such other reliefs this Hon'ble Court deems fit and proper to grant in the facts and circumstances of the case. 2. Petitioner is the plaintiff in O.S No.300 of 2007 on the file of the Principal Sub Judge, North Paravur. The above suit was filed for W.P.(C).No.20869 OF 2009 Page numbers a decree of declaration and for specific performance of an agreement of sale. The respondents resisted the suit filing a written statement in which among other contentions valuation of the suit and also adequacy of court fee payable on the suit claim was also disputed. After settling of the issues, the court below considered the adequacy of court fee as a preliminary issue. The learned Sub Judge after hearing both sides and examining the pleadings, passed Ext.P8 order holding that the court fee paid by the plaintiff is not sufficient. Plaintiff thereupon filed an application for reviewing that order. The learned Sub Judge dismissed the review petition by Ext.P10 order. Propriety and correctness of Ext.P8 and P10 orders are challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.(C).No.20869 OF 2009 Page numbers 3. I heard the learned counsel on both sides. Learned counsel for the petitioner submitted that suit is laid for specific performance of a contract, but by inadvertence and mistake in drafting the main relief in the suit was claimed as one for declaration that some registered sale deeds executed pursuant to the agreement of sale have to be declared as void. In fact, after seeking the relief of specific performance, a consequential relief treating those documents are not binding on the plaintiff alone was required. But a declaratory relief was claimed in the suit as indicated above. The learned counsel seeks permission to carry out necessary amendments in the plaint and the reliefs claimed so that relief can be confined to specific performance of the agreement of sale entered with the defendants. Perusing Ext.P8 and P10 orders with reference to W.P.(C).No.20869 OF 2009 Page numbers Ext.P1 copy of the plaint, I find some force in the submission made by the counsel. Cause of action for the plaintiff to institute the suit is based on the agreement of sale purported to have been executed by the first defendant in his favour. That being so, the right of the plaintiff to claim specific performance, confining to that reliefs with consequential reliefs thereof in the present suit, though previously a declaratory relief was also claimed, will not change character of the suit. I do not want to express any further opinion on the proposed amendment which is sought to be moved by the plaintiff. If any such application is moved by the plaintiff the court below shall consider it on its merit and dispose it in accordance with law. I make it clear that Ext.P8 and P10 orders will not stand in the way of the plaintiff in seeking amendment of the plaint to confine his reliefs to a decree of specific W.P.(C).No.20869 OF 2009 Page numbers performance and consequential reliefs there of. Subject to the observations made above, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv