IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 WP(C).No. 1842 of 2007(T) -------------------------------------- (I.A.NO.1655/06 IN A.S.33/03 OF SUB COURT, PALAI) PETITIONER: --------------------- THOMAS, AGED 76 YEARS, S/O OUSEPH, VETATH EDAYADIYIL HOUSE, PONADU KARA, LALAM VILLAGE, PALAI. BY ADV. SRI.GEORGE VARGHESE NARAYANPARAMBIL RESPONDENTS: ------------------------- 1. ALEYKUTTY MAHEW, EDASSERIPARAMBIL HOUSE, NECHIPUZHAOOR (PO), LALAM VILLAGE, PALAI, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, DEVASSIA MATHEW, EDASSEIPARAMBIL HOUSE, NECHIPUZHOOR (PO), LALAM VILLAGE, PALAI. 2. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM. 3. ASST.DIRECTOR, RESURVEY, KOTTAYAM. 4. DEPUTY DIRECTOR, SURVEY & LAND RECORDS, KOTTAYAM. 5. TAHSILDAR, MEENACHIL TALUK, PALAI. 6. DISRICT SUPT. OF SURVEY & LAND RECORDS, KOTTAYAM. ADV. SRI.MANUEL KACHIRAMATTAM FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.1842/2007 T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PETITION/I.A.NO.1199/05 IN A.S.NO.33/03 SUB COURT, PALAI DTD. 2/09/2005. EXT.P2: COPY OF ORDER IN ...DO... DTD. 20/01/06. EXT.P3: COPY OF THE REVIEW PETITION/I.A.NO.1655/06 IN A.S.NO.33/2003 SUB COURT, PALAI DTD. 51/0/06. EXT.P4: COPY OF THE RODER IN I.A.1655/06 IN A.S.NO.33/03 SUB COURT, PALAI DTD. 12/12/06. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE OBJECTION FILED BY IN I.A.NO.1655/06 IN A.S.NO.33/03. EXT.R1(B): COPY OF THE PLAINT IN O.S.NO.395/05. /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 1842 OF 2007 =========================== Dated this the 2nd day of September, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India to quash Ext.P2 order passed by Sub Court,Pala in I.A.1199/2005 an application filed under Rule 17 of Order VI of Code of Civil Procedure to amend the plaint. Petition is seen allowed under Ext.P2 order as follows:- “I.A is allowed.” 2. Learned counsel appearing for first respondent argued that subsequently respondents filed Ext.P3 review petition which was dismissed under Ext.P4 order on the ground that the amendment has already been carried out and no prejudice will be caused to the petitioner and therefore Ext.P2 order cannot be interfered. Learned counsel also argued that appellate court has also got the same powers as the trial court, to allow an application for amendment and therefore W.P.(C) No.1842/2007 2 there is no reason to interfere with Ext.P2 order. 3. Even when the trial court is allowing an application filed under Rule 17 of Order VI of Code of Civil Procedure, reasons for allowing the application should be shown. When an application for amendment is filed in the appeal, before allowing the application, appellate court is bound to consider why the application was not moved before the trial court and if it was moved and not allowed, the application should be considered not before hearing the appeal but along with the appeal as the order passed by the trial court is a factor to be challenged and decided in the appeal itself. As Ext.P2 order does not show any reason for allowing the application, Ext.P2 order is quashed. Sub Judge, Pala is directed to hear I.A.1199/2005 along with the appeal and pass appropriate order in accordance with law. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE W.P.(C) No.1842/2007 3 tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006