IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 WP(C).NO. 18897 OF 2010(O) ------------------------------------------ AGAINST THE ORDER IN IA 700/2010 IN OS.781/2007 OF PRL.SUB COURT,THRISSUR .................... PETITIONER(S): ----------------------- REMADEVI, AGED 58 YEARS, D/O. SREEDHARAMENON, CHIRUKANDATH HOUSE, POONKUNNAM DESOM AND VILLAGE, P.O.PUNNKUNNAM, THRISSUR TALUK. BY ADV. SRI.MILLU DANDAPANI SRI.G. GOPALAKRISHNAN NAIR RESPONDENT(S): ------------------------ 1. T.RAMANANDAN, AGED 59 YEARS, SREEDHARAN MENON, SREERAJ, CHIRUKANDATH HOUSE, SANKARAPURAM, POONKUNNAM DESOM AND VILLAGE, P.O.POONKUNAM-680002. THRISSUR TALUK. 2. T.RAJASANKAR, AGED 47 YEARS, S/O. SREEDHARA MENON, NIRUPAMA, CHIRUKANDATH HOUSE, DO-DO- 3. T.RADHADEVI, AGED 55 YEARS, D/O. SREEDHARA MENON, NIRUPAMA, CHIRUKANDATH HOUSE, DO-DO- 4. RAGHUNATHAN, AGED 44 YEARS, S/O. SREEDHARA MENON, DO-DO- 5. THANKAMMA, @ LAKSHMIKUTTY AMMA, AGED 79 YEARS, W/O. SREEDHARRA MENON, DO-DO- ADV. SRI.K.G.BALASUBRAMANIAN FOR R1 SMT.AMBILY (PREMKUMAR) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.781 OF 2007 DATED 3.8.2007. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 31.1.2008 EXHIBIT P3 TRUE COPY OF THE PETITION I.A. NO.700 OF 2010 IN O.S.. NO.781 OF 2007 DATED 18.1.2010. EXHIBIT P4 TRUE COPY OF THE OBJECTION TO I.A. NO.700 OF 2010 DATED 18.2.2010. EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A. NO.700 OF 2010 IN O.S. NO.781 OF 2007 OF OTHE PRL. SUB COURT, THRISSUR DATED 18.3.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.18897 of 2010 ==================================== Dated this the 16th day of July, 2010 J U D G M E N T Plaintiff in O.S. No.781 of 2007 of the court of learned Principal Sub Judge, Thrissur is the petitioner before me challenging Ext.P5, order dismissing I.A. No.700 of 2010. Petitioner sued respondents for partition of suit properties and filed I.A. No.4508 of 2007 for an order of temporary injunction. Respondent No.1 filed counter statement to that application on 01.10.2007 and written statement on 12.05.2008 claiming that petitioner has released her right in the suit property in favour of respondent No.1 as per document No.1543 of 1991. In the light of that contention petitioner sought amendment of plaint to state that such document was created by respondent No.1 without her knowledge and consent, fraudulently and misrepresenting facts to her. That application was opposed by respondent No.1 and the learned Sub Judge as per Ext.P5, order dismissed the application observing that on 21.12.2009 suit was ordered to be listed on 03.02.2010 and application is filed on 18.01.2010 but there is no satisfactory explanation for delay in the case. It is also observed that amendment sought for is likely to change character of the suit. W.P(C) 18897 of 2010 -: 2 :- Finding so, application was dismissed. Learned counsel for petitioner contends that petitioner learnt about real nature of the document got executed from her by respondent No.1 only from the written statement filed by him and on the mere fact of delay, application ought not have been rejected. It is also stated that finding of learned Sub Judge that amendment if allowed would change the character and nature of the suit is not correct. Learned counsel has placed reliance on the decision in Mathew Alexander v. Sreedharan Pillai (1989 [2] KLT 468) to contend that even after the period of limitation it is within the power of court to allow the amendment. Learned counsel for respondent No.1 contended that lack of bona fides is writ large on the face of the application which could be revealed by a reading of paragraph 5 of Ext.P1, plaint. 2. Position of law is that amendment which is necessary to decide the real controversy between parties has to be allowed except when it would cause prejudice to the opposite party. In paragraph 2 of the plaint petitioner has stated about certain documents allegedly got executed from her by respondent No.1 making her believe that those documents are security for loan transaction. It is the case of petitioner that it is from the written W.P(C) 18897 of 2010 -: 3 :- statement filed by respondent No.1 on 12.03.2008 that she learnt that those documents purport to transfer her right in the suit property in favour of respondent No.1. It is thereon that she has filed the application for amendment. It is true that application has come after the suit was ordered to be included in the list for trial. Mere fact of delay is not sufficient to reject the prayer if otherwise relief sought by amendment is required to be considered. Learned counsel for respondent No.1 has a contention that the prayer sought for in the application has become barred by limitation. Learned counsel for petitioner states that question of limitation does not arise since even in paragraph 2 of plaint petitioner has stated that misrepresenting it to be as security some documents were got executed from her by respondent No.1. 3. It is not necessary for me to pronounce verdict on the question whether relief sought to be included by amendment is barred by limitation. Even after amendment is permitted it is open to the court below to decide whether plea of limitation if raised can be sustained in view of the averments in paragraph 2 of the plaint originally made, in the light of the decision in Mathew Alexander v. Sreedharan Pillai (Supra). Having regard to the W.P(C) 18897 of 2010 -: 4 :- facts and circumstances of the case I am of the view that court below ought not have dismissed the application on the ground of delay. Nor do I think that if amendment is allowed it will change nature and character of the suit since the prayer in the plaint originally filed is one for partition and the additional relief sought to be incorporated by amendment is a declaration that document No.1543 of 1991 was got executed by respondent No.1 fraudulently to defraud petitioner. In the circumstances Ext.P5, order cannot be sustained. Resultantly, Writ Petition is allowed. Exhibit P5, order dismissing I.A. No.700 of 2010 is set aside and that application stands allowed. It is made clear that it will be open to respondent No.1 to raise plea of limitation regarding the relief incorporated by way of amendment and the question of limitation shall be decided by the court below after trial of the suit. Petitioner shall carry out amendment within fourteen (14) days from this day or within such time as may be extended by the learned Sub Judge. THOMAS P. JOSEPH, JUDGE. vsv