IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 18TH DECEMBER 2006 / 27TH AGRAHAYANA 1928 WP(C).No. 33392 of 2006(A) ----------------------------------- OS.832/1998 of PRL.M.C.,KOZHIKODE-II .................... PETITIONER: ------------------- M/S JDT ISLAM ORPHANAGE COMMITTEE, SILVER HILLS, NARIKKUNI, CALICUT- 673 012, REPRESENTED BY ITS SECRETARY, DR.P.C.ANVAR, S/O.P.C.AHAMMED, AGED 49. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: --------------------- A.THIKKODI, S/O.MOIDEEN HAJI, AGED 66 YEARS, PROPRIETOR, M/S.ZEEBA ADVERTISING, 17/1760, MPKB BUILDING, MUTHALAKKULAM, GH ROAD, CALICUT-1. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/12/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.C.NO.33392 OF 2006 (A) ----------------------------------------- Dated this the 18 th day of December, 2006. JUDGMENT Petitioner is the defendant and respondent the plaintiff in O.S.832/98 on the file of Munsiff Court, Kozhikkode. The suit was filed for realisation of the amount due under the account. The suit was originally decreed. Petitioner challenged the decree and judgment in A.S.172/04. The appellate court remanded the suit back to the trial court. There after petitioner filed I.A.3970/05, an application under Order IV Rule 17 of Code of Civil Procedure to amend written statement. Under Ext.P4 order the petition was dismissed. This petition is filed challenging the said order under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner was heard. 3. Arguments of the learned counsel appearing for petitioner was that even in the original written statement, petitioner contended that the records were taken by the Police and therefore petitioner was not in possession of the details of the transaction and the appellate court was convinced of the W.P.C.NO.33392 OF 2006 (A) 2 reasons and remanded the suit for proper disposal and as suit is based on account, plaintiff is bound to produce the accounts and in such circumstances amendment should have been allowed. It was also argued that even if by the amendment any admission is taken away that is not fatal and defendant is entitled to get the written statement amended as sought for. 4. On hearing learned counsel appearing for petitioner I do not find any infirmity in Ext.P4 order warranting interference in exercise of the extra ordinary jurisdiction of this court under Article 227 of Constitution of India. In the written statement as well as before the appellate court, petitioner did not dispute the liability. The dispute was only with regard to the quantum of the liability. What was sought to be introduced by the amendment was the very liability itself. Petitioner sought to raise a plea that there was no transaction as alleged and no order for advertisement was placed. It was never the case of the petitioner earlier or before the appellate court. In such circumstances the court did not permit him to introduce the new plea. W.P.C.NO.33392 OF 2006 (A) 3 5. Argument of learned counsel was that further amendment sought for should have been allowed. I do not agree with that also. Even without introducing the said plea, petitioner is entitled to contend before the trial court that, if the plaintiff has not produced the account necessary inference is may be drawn. In such circumstances petition is dismissed. Learned counsel appearing for petitioner submitted that liberty has to be granted to the plaintiff for filing an additional written statement. It is for the Munsiff to decide whether it is to be allowed or not if an application is filed for that purpose. M.SASIDHARAN NAMBIAR, JUDGE. bkn