IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 OP(C).No. 318 of 2011(O) OS.401/2009 OF PRL.SUB COURT,IRINJALAKUDA PETITIONER: ------------------- INDIRA PRASAD, AGED 38 YEARS, W/O.AVINASH PRASAD, NOW RESIDING AT 123, COLUMBIA STREET, WOODS RIDGE, NEW JERSEY, USA, REPRESENTED BY POWER OF ATTORNEY HOLDER RAVINDRA NATH SHRIVASTAV, AGED 33, RESIDING AT `PRARTHANA' C/O. AVINASH PRASAD, OPP.CMI PUBLIC SCHOOL,CHALAKUDY.PO-680 307. BY SENIOR ADV. SRI.RANJITH THAMBAN SRI.V.M.KRISHNAKUMAR SMT.P.R.REENA RESPONDENT: --------------- LALITHA HARIDAS, AGED 45 YEARS, W/O.HARIDAS, RAPPAL WARRIAdM, AJANTHA, OPP.CMI PUBLIC SCHOOL, PADINJARE CHALAKUDY VILLAGE, CHALAKUDY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN-680 307. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 318 OF 2011 O ------------------------------------------------------ Dated this the 1st day of February, 2011 JUDGMENT The defendant in O.S.No.401 of 2009 on the file of the Court of the Principal Subordinate Judge, Irinjalakuda challenges the order dated 10.12.2010 in I.A.No.3614 of 2010, by which, the court below allowed the application filed by the respondent/plaintiff for amendment of the plaint. 2. The suit was filed by the respondent/plaintiff for realisation of Rupees Five lakhs with interest. The plaintiff and the defendant are sisters. According to the plaintiff, a cheque dated 25.6.2009 was issued by the defendant in discharge of the liability to the tune of Rupees Five lakhs. The cheque was dishonoured on the ground that the account was closed. In paragraph 6 of the plaint, it is stated that cause of action arose on 25.6.2009, the date on which the defendant signed and issued the cheque. 3. The defendant denied the transaction. According to her, the cheque is not a genuine one. A criminal case was initiated O.P.(C) NO.318 OF 2011 O :: 2 :: against the plaintiff and her husband for theft, misappropriation of funds and for criminal breach of trust. The case of the defendant is that she is residing with her husband in United States of America. Various amounts were sent by her to the plaintiff. The plaintiff misappropriated those funds and siphoned off the funds for her benefit. The cheque in question was not issued by the defendant. On 25.6.2009, the defendant was not in India. It is also stated in the written statement that with effect from 16.10.2006, the defendant changed her name and signature, by issuing appropriate notification in the gazette. The signature in the cheque was the old signature and that itself shows that the cheque was not issued by the defendant. The written statement was filed on 6.10.2009. 4. On 4.10.2010, the plaintiff filed I.A.No.3614 of 2010 for amendment of the plaint. The amendment sought for is to incorporate in page 2 of the plaint that the cheque was issued on 12.6.2008. An amendment was also sought to be introduced in the cause of action to show that the cheque was issued on 12.6.2008. In the affidavit accompanying the application, it is stated that the cheque was issued by the defendant on 12.6.2008. Going by the O.P.(C) NO.318 OF 2011 O :: 3 :: averments in the plaint, it is seen that the cheque is dated 25.6.2009. That is not sought to be changed. The court below, by the order impugned, allowed the application for amendment. It was held that registration of a crime against the plaintiff is not a sufficient ground for disallowing the application for amendment. It was also held that the amendment will not alter the nature and character of the suit. 5. Sri.Ranjith Thamban, the learned Senior Counsel appearing for the petitioner, submitted that the admission made in the plaint is sought to be withdrawn by the proposed amendment. It is also submitted that the application for amendment was filed after one year of the date of filing of the written statement. A date is deliberately and conveniently found out by the plaintiff and it is sought to be incorporated as the date on which the cheque was issued. 6. It is true that in paragraph 6 of the plaint, it is stated that the cause of action arose on 25.6.2009. In paragraphs 2 and 3 of the plaint, the statement is that the cheque is dated 25.6.2009. The date of issue of the cheque is not mentioned in paragraphs 2 and 3. The O.P.(C) NO.318 OF 2011 O :: 4 :: only statement which is found in the plaint as to the date on which the cheque was issued is in paragraph 6. In the affidavit accompanying the application for amendment of the plaint, it is stated that a mistake crept in, which requires to be corrected. 7. The court below held that the defendant would be entitled to file an additional written statement and that all the contentions could be taken in the additional written statement. It is made clear that the defendant would be entitled to raise all the contentions including the contention that an admission is sought to be withdrawn by amendment of the plaint. The question whether there was admission also will be considered at the time of trial. Reserving the right of the defendant to file additional written statement, the court below allowed the application. I do not find any ground to interfere with the well considered order passed by the court below. There is no error of jurisdiction or failure of justice. The Original Petition is, accordingly, dismissed. (K.T.SANKARAN) Judge ahz/