IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 WP(C).No. 15357 of 2006(C) -------------------------------------------- OS.100/2004 of II ADDL. MUNSIFF COURT, KOZHIKODE .................... PETITIONER: P.C.MATHEW, AGED 42 YEARS, S/O.CHERAPPAN PULIKKOTTIL, MADANAPARAMBA, PUTHIYARA, KASABA AMSOM DESOM. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: 1. RARICHAKANDIYIL PRABHAKARAN, AGED 53 YEARS, S/O.CHATHUKKUTTY, CHEVAYUR AMSOM AND DESOM OF KOZHIKODE TALUK. 2. KANNAM VEETTIL SURENDRAN, S/O.SURENDRAN, AGED 63 YEARS, DO. DO. 3. KANNAM VEETTIL SYAM SUNDER, S/O.SURENDRAN, AGED 33 YEARS, DO. DO. 4. NAMBIYAMBARAMBATH SHOBITH RAJ, AGED 42 YEARS, S/O.HARIDASAN, DO. DO. ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.15357 of 2006 C -------------------------- JUDGMENT Petitioner is the defendant in O.S.No.100/04 on the file of the II Additional Munsiff's Court, Kozhikode. The suit is one for damages for malicious prosecution. A petition for amendment of the plaint was filed by the respondents, who were the plaintiffs in the suit, which, according to the petitioner, was in an attempt to see that question of limitation is circumvented and therefore, the amendment was opposed by filing a counter. But, however, the court below allowed the amendment by Exhibit P4 order. Though the prayer in the writ petition is to set aside Exhibit P4 order or in the alternative to direct the court below to re-hear the amendment application (I.A.No.834/06), counsel for the petitioner submits that petitioner was constrained to file this writ petition advancing such a prayer, as the court below, while allowing amendment of the plaint, has made an observation to WPC 15357/06 2 the effect that the suit is not barred by limitation. According to him, he does not find fault with for having allowed the amendment of the plaint, but at the same time, the question as to whether the suit is barred by limitation is a matter to be decided after raising issues and adducing evidence and on the materials that are furnished before court and that in view of the observations in Exhibit P4 order, petitioner may not be estopped from raising contentions in the suit that the suit is barred by limitation. 2. Counsel for the respondents submits that the question of limitation was considered by the court only because it was so argued by the counsel for the petitioner and that in fact such an observation would not have been warranted while allowing the amendment application. In the circumstances, I order that the observations made by the court below as regards the applicability or otherwise of the bar of limitation to the claim in WPC 15357/06 3 the suit will not affect the contentions of the defendant that may be raised by an issue in the suit and that the court below will have to enter finding on that issue, considering the pleadings and evidence that may be adduced at the time of trial untrammeled by any of the observations made in Exhibit P4 order of the court below. The writ petition is disposed of as above. 25th November, 2008 (K.P.Balachandran, Judge) tkv