IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 246 of 2009(D) ------------------------------- OS.190/2000 of III ADDL.SUB COURT, ERNAKULAM .................... PETITIONER(S): ------------------- 1. E.S.JOSE,S/O.SOLOMON,CHAIRMAN & MANAGING DIRECTOR, A TO Z GROUP OF COMPANIES, P.T.USHA ROAD, ERNAKULAM. 2. CHERRY BABU, FATHIMA CHURCH LANE, ERNAKULAM, KOCHI-20. BY ADVS. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENT(S): -------------------- 1. M/S.ORIENTAL BANK OF COMMERCE, BRANCH M. G.ROAD, ERNAKULAM, REP.BY ITS MANAGER. 2. THE KERALA TIMES, A DAILY WORKING UNDER THE KERALA CUITURAL SOCIETY LTD., REGISTERED UNDER THE TRAVANCORE COCHIN LITERARY, SCIENTIFIC AND CHARITABLE SOCIETIES REGISTRATION ACT, REP. BY ITS CHAIRMAN DR.SEBASTIAN PAUL, PROVIDENCE ROAD ERNAKULAM. 3. MS.WINNIE ABRAHAM, SECRETARY, KERALA CULLURAL SOCIETY LTD.,I.S.PRESS ROAD,I.S.PRESS BUILDING, ERNAKULAM. R1 & R2 BY ADVS. SRI.SUBAL J.PAUL SMT.SHEEBA SUBAL R3 BY ADV. SRI.JOHN K.GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 246 of 2009(D) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. NO. 190/2000 ON THE FILE OF THE SUB COURT, ERNAKULAM THUS FILED BY THE FIRST RESPONDENT HEREIN. P2: COPY OF THE APPLICATION FOR AMENDMENT FILED BY THE 1ST RESPONDENT HEREIN AS I.A. NO.1254/2002 IN O.S. NO.190/2000. P3: COPY OF THE OBJECTION FILED BY THE PETITIONERS TO EXT.P2 APPLICATION. P4: COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 05/07/2007 IN WPC NO.19642/2006. P5: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS HEREIN IN EXT.P1 PLAINT. P6: COPY OF THE ORDER DATED 06/11/2008 IN I.A.NO.1254/2002 IN O.S.NO.190/2000 PASSED BY THE SUB COURT, ERNAKULAM. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE SVS/ HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.246 Of 2009 ---------------------- Dated this the 16th day of September, 2010. J U D G M E N T The petitioners are the additional defendants 3 & 4 in O.S.No.190 of 2000 on the file of the Sub Court, Ernakulam. Suit was filed for a prohibitory injunction restraining the defendants namely, respondents 2 & 3 herein, from alienating the plaint schedule properties hypothecated in favour of the bank. The plaintiff bank filed I.A.No.1254 of 2002 under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint. Plaintiff sought to amend the plaint by incorporating a money claim. Proposed amendment is for inserting necessary averments for realisation of money due from the defendants. In the relief portion by way of amendment the plaintiff claimed recovery of Rs.5,48,918/- from the defendants. By the amendment the plaintiff further wanted to implead additional defendants 3 & 4, who according to the plaintiff are the guarantors. The plaintiff averred that the amendment is necessary for avoiding multiplicity of suits. W.P.(C).No.246 Of 2009 ::2:: 2. The petitioners opposed the prayer. They pleaded that the suit was for injunction simplicitor and by proposed amendment the plaintiff wants to convert th suit into a money suit and that in the nature of the amendment proposed the nature and character of the suit will be changed. It is also contended that money claim has already become time barred and the amendment proposed is for realising time barred debt. 3. The civil court considered the contentions raised by both sides. The court found that the plaintiff issued notice on 4.3.2000 calling upon the defendants in the suit to pay the debt. The civil court in paragraph 7 examined the question as to whether the proposed plaint claim is barred by limitation or not. The court found that even if the amendment is allowed the claim will be within the period of limitation of three years, that the amendment petition was filed on 1.4.02, i.e., within three years from the date of arising of cause of action of the suit. The civil court also examined the contention of the writ petitioners as to whether the proposed amendment will change the character and nature of the suit. The court observed that from the plaint it can W.P.(C).No.246 Of 2009 ::3:: be seen that the amount is due from the defendants and when the defendants tried to alienate the property the suit for injunction is filed expressly reserving the plaintiff's right to sue for realisation of the amount from the defendants. The court also observed that the plaintiff now thought it better to implead the guarantors and to amend the plaint for recovery of the amount due from them. The court also noticed that notice was issued to the present defendants and proposed defendants. the court held that in view of the contention of the defendants and in order to determine the real question in controversy between the parties the plaintiff wants to amend the plaint and incorporate money claim. By doing so, it cannot be said that the nature and character of the suit substantially change. The court is of the view that the proposed amendment is only a different or additional approach to the same facts and the amendment is necessary for determination of the real controversy between the parties. The court also relied on the decision of the Apex Court in Pankaja v. Yellappa (2004 (3) KLT (SC) SN 50). The Apex Court observed that even in a case where the amendment would W.P.(C).No.246 Of 2009 ::4:: save the period of limitation in such cases also amendment can be allowed. In this case, such a situation does not arise. Here the amendment sought for recovery of money is within the period of limitation. The amendment is necessitated also for avoiding multiplicity of suits as well. In these circumstances, the order passed by he court below allowing the amendment is valid. It is made clear that the finding regarding the question of limitation is entered for the consideration of the present application for amendment. The question as to whether the suit is barred by limitation or not shall have to be considered in detail at the time of trial of the suit. So, the question as to whether the suit is barred by limitation is left open to be decided during the trial of the suit. The petitioners are not entitled to any relief. Writ petition is disposed of with the above observation. HARUN-UL-RASHID, Judge. bkn/-