IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WP(C).No. 32527 of 2008(V) -------------------------- AGAINST THE ORDER DATED 15/8/2008 IN IA.2018/2008 IN OS.78/2004 of SUB COURT, OTTAPPALAM .................... PETITIONER: --------------- VASUDEVAN RAJU, S/O OORALATH VASUDEVAN, RESIDING AT PALAPPURAM.P.O, OTTAPALAM, PALAKKAD. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT: --------------- SUDHEER BABU, S/O.KUNHIMARACKAR HAJI, RESIDING AT KAKKATTIL, KUTTIPURAM VILLAGE, TIRUR TALUK, MALAPPURAM DISTRICT. ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.32527 OF 2008 ------------------------------------------ Dated 13th February 2009 JUDGMENT Petitioner is the plaintiff in O.S.78/2004 on the file of Sub court, Ottappalam. Respondent is the defendant. Suit is one for specific performance of an agreement for re-assigning the property. I.A.2018/2008 was filed by the petitioner under Rule 17 of Order VI of Code of Civil Procedure for amendment of the plaint. Amendment sought for is to incorporate a new plea that original assignment deed by which petitioner transferred the property in favour of the respondent which was later agreed to be re-assigned under the agreement, are sham and nominal documents. Petition was dismissed by the learned Sub Judge under Ext.P3 order accepting the objections of respondent that claim sought to be introduced is barred by time and if the amendment is allowed it would alter the nature of the suit. Ext.P3 order is challenged in this petition. 2. Learned Senior counsel appearing for petitioner and learned counsel appearing for the WPC 32527/08 2 respondent were heard. 3. Learned Senior counsel relying on the decision of the Apex court in Ragu Thilak D.John v. Rayappan and others (2001 (2) SCC 472) argued that whether the relief could be granted to the plaintiff as sought for the amended claim is to be decided in the suit and not in the application for amendment of the plaint. Relying on the decision in Abdulla v. Pathumma (2003 (2) KLT 298) it was argued that it is not at this stage to decide the question whether proposed amendment is barred by time and it is a matter to be decided in the suit and therefore the order is not sustainable. 4. Learned counsel appearing for respondent argued that as rightly found by the learned Sub Judge the proposed amendment is barred by time and by the amendment suit for specific performance of the agreement is sought to be altered to a suit for declaration that sale deeds executed by the petitioner are sham and nominal document and character of the suit will be altered and there is no reason to interfere with the order. 5. On going through Ext.P3 order, it is WPC 32527/08 3 absolutely clear that learned Sub Judge did not consider the application in the proper perspective. It is not for the court to decide in an application filed under Rule 17 of Order VI of Code of Civil Procedure whether the amendment sought to be introduced is barred by time. It is a matter to be decided in the suit once amendment is allowed and additional written statement is filed. Similarly question whether the relief could be granted as sought for by the proposed agreement is to be decided in the suit and not in the application. In such circumstances, Ext.P3 order in I.A.2018/2008 is quashed. The application stands allowed and permission is granted to amend the plaint. Respondent is permitted to file an additional application taking up all the contentions available including the one whether the claim is barred by time. It is for the learned Sub Judge to decide whether claim for declaration is barred by time and whether the relief could be granted on the amended plaint, after recording the evidence. Writ petition is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE. WPC 32527/08 4 uj.