IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 OP(C).No. 151 of 2011(O) -------------------------------- OS.261/2009 of SUB COURT, PALA .................... PETITIONER : ------------------- THOMAS, S/O.KURIAKOSE, MADAPATTEL, PUTHUVELI, VELIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DIST. BY ADV. SRI.S.PRASANTH SRI.JAGADEESH LAKSHMAN RESPONDENT: -------------------- JACOB JOHN, S/O.ULAHANNAN, MATAPATTEL, KOOTHATTUKULAM KARA, KOOTHATTUKULAM VILLAGE 686662 ADVS. SRI.V.MANOJ KUMAR FOR R1 SRI.IYPE JOSEPH FOR R1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 151 of 2011(O) APPENDIX PETITIONER'S EXHIBITS : EXHIBIT P1 : TRUE COPY OF O.S.NO.261/2009 DATED 12.11.2009 OF SUB JUDGE, PALA. EXHIBIT P2 : TRUE COPY OF SECOND AGREEMENT DATED 02.06.2009. EXHIBIT P3 : TRUE COPY OF THE ABOVE WRITTEN STATEMENT DATED 23.06.2010. EXHIBIT P4 : TRUE COPY OF THE AMENDMENT PETITION DATED 01.10.2010. EXHIBIT P5 : TRUE COPY OF THE OBJECTION IN IA 1405/2010 FILED BY THE RESPONDENT DATED NIL EXHIBIT P6 : TRUE COPY OF THE ORDER OF LEARNED SUB JUGE, PALA DATED 02.11.2010 RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE ln THOMAS P JOSEPH, J. ----------------------------------- O.P(C)No. 151 of 2011 --------------------------------- Dated this the 19th day of September, 2011 JUDGMENT Ext.P6, order dated 2nd Novermber, 2010 on I.A. No. 1405 of 2010 in O.S. No. 261 of 2009 of the Court of learned Sub Judge, Pala to the extent that learned Sub Judge refused to allow petitioner amend the plaint relating to the date of execution of the impugned agreement is under challenge in this Original Petition. 2. Petitioner sued the respondent for a decree for specific performance of an agreement for sale (Ext.P2) allegedly executed between petitioner and the respondent. That agreement bore the date – ’02.06.2008’ as its date of execution. Respondent filed written statement denying execution of said agreement. Petitioner filed Ext.P4, application for amendment of the plaint to correct the date of agreement as 31.05.2008 instead of 02.06.2008 and also to correct the sale consideration mentioned in the plaint. The application was opposed by the respondent on various grounds including that on 02.06.2008 respondent was in the U.A.E. and learning that, petitioner is trying to save the situation by making it appear that the 2 O.P.(C) No. 151 of 2011 impugned agreement was executed on 31.05.2008. Learned Sub Judge though allowed amendment to correct the consideration stated in the plaint found merit in above contention and refused amendment to the extent it related to the date of alleged agreement. The order to that extent is under challenge. 3. Learned counsel for petitioner has contended that learned Sub Judge was not correct in prejudigng the merit of the plea sought to be incorporated by amendment. According to the learned counsel, the agreement was actually entered into between the parties on 31.05.2008 but since 01.06.2008 happened to be a Sunday it was agreed between the parties that the agreement could be registered on 02.06.2008 and accordingly putting that date (02.06.2008) - the agreement was prepared and signed by the parties on 31.05.2008. 4. Learned counsel for respondent contends that there is no merit or bonafides in the plea. It is contended that between the parties Ext.R1(a) agreement was executed on 05.05.2008 the period of which expired on 31.05.2008, that agreement provided that in case the sale deed is not executed within the time stipulated it is open to the parties to extent the time by two 3 O.P.(C) No. 151 of 2011 weeks but petitioner did not take any step to get the sale deed executed either within the time specified in the agreement dated 05.05.2008 or within the time that could be extended. It is also submitted by the learned counsel that respondent was in the U.A.E. on 02.06.2008. At the time of executing the first agreement on 05.05.2008 petitioner had obtained signed blank papers and stamp papers from the respondent on which Ext.P2, agreement was fabricated. A further contention is that Ext.R1 (d), the reply notice issued on behalf of petitioner would show that impugned agreement was allegedly executed on 02.06.2008 and not on 31.05.2008. In response learned counsel for petitioner contended that what is mentioned in Ext.R1(d) is only that agreement ‘dated 02.06.2008’ was executed and not that the agreement was executed on 02.06.2008. 5. No doubt, Ext.P2 agreement bears the date ’02.06.2008’ and in Ext.R1(d) also it is stated that the agreement dated 02.06.2008 was executed. But, it is not as if petitioner could not lead evidence that the agreement was really executed on any other day as petitioner contends. Whether such a contention if raised would be accepted and acted upon is not a 4 O.P.(C) No. 151 of 2011 matter reuired to be decided at this stage. The Court cannot pre judge the merit of the plea sought to be incorporated by amendment. It was well within the right of petitioner to mention in the plaint originally that in the circumstances stated in Ext.P4, the date was shown in Ext.P2, agreement as 02.06.2008 in which case respondent had to meet that plea. In other words, what is being permitted is only to allow petitioner plead his case that agreement was executed not on 02.06.2008 but on 31.05.2008 as he contends. I am also not inclined to think such an amendment would either alter the nature or character of the suit – it would continue to be a suit for specific performance based on the very same agreement. 6. Having heard learned counsel on both sides and the circumstances stated above I am inclined to think that petitioner should be given an opportunity to amend the plaint as prayed for and plead his case. Needless to say that the respondent will get the opportunity to file additional written statement and take up all pleas in defence of the amended plaint. Resultantly, this Original Petition is allowed as follows: Ext.P6, order to the extent it went against petitioner is set 5 O.P.(C) No. 151 of 2011 aside and I.A. No. 1405 of 2010 will stand allowed, as prayed for. Petitioner shall carry out amendment as allowed above as well within two weeks from the date on which a copy of this judgment is received in the trial Court. I make it clear that the amendment allowed hereby is only of the plaint. Learned Sub Judge shall give the respondent opportunity to file additional written statement, if any, in answer to the amended plaint. I make it clear that I have not expressed any opinion on the acceptability or otherwise of the plea being introduced in the plaint by amendment. THOMAS P JOSEPH JUDGE dnc