IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 WP(C).No. 27917 of 2007(W) -------------------------- OS.455/2002 OF I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONERS: ------------ 1. STATE BANK OF TRAVANCORE REPRESENTED BY ITS CHIEF MANAGER (PREMISES), HEAD OFFICE, POOJAPPURA, THIRUVANANTHAPURAM. 2. THE MANAGER, STATE BANK OF TRAVANCORE, FORT BRANCH, THIRUVANANTHAPURAM. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENTS: ------------- 1. M.A. BEEGUM, W/O. S.M. HANEEF SAHIB, RESIDING AT AT 'BISMI', MANACAUD, THIRUVANANTHAPURAM 2. S.M. HANEEF SAHIB, S/O. LATE MOHAIDEEN KUNJU OF -DO- -DO-. BY ADV. SRI.V.CHITAMBARESH (SR.) FOR R1 & 2 SRI.M.SREEKUMAR FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Exhibit-P1:- Copy of the plaint in OS 455/2002 on the file of 1st Addl. Sub Court, Thiruvananthapuram Exhibit-P2:- Copy of the written statement filed by the defendants Exhibit-P3:- Copy of the judgment in CRP 1952/2002 of this Court. Exhibit-P4:- Copy of the amendment application I.A. 5086/2006 Exhibit-P5:- Copy of objection filed by defendants to IA 5086/2006 Exhibit-P6:- Copy of the order dt: 12.7.2007 in IA 5086/2006 in OS 455/2002 on the files of the 1st Addl. Sub Court, Thiruvananthapuram. //True Copy// P.A. to Judge M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C). No. 27917 of 2007 ------------------------------------------ Dated this the 11th day of June, 2008 JUDGMENT Petitioners are the defendants in O.S. 455 of 2002 on the file of Addl. Sub Court, Thiruvananthapuram. Respondents are the plaintiffs. Suit was originally filed for settlement of accounts. Admittedly respondents, availing the loan sanctioned by petitioners, constructed a building and as per agreement rented out the building so constructed to the petitioners on rent, agreeing to adjust the rent payable towards the amount due under the loan account. Subsequently, there was dispute between petitioners and respondents on account of demand for surrender of the tenanted building. Petitioners contended that a portion of the leasehold property building was surrendered, which was not accepted by the respondents. Respondents in turn approached the Rent Control Court for an order of eviction under Section 11 of Kerala Building (Lease and Rent Control) Act on the ground of arrears and WPC27917/07 2 bonafide need. The Rent Control Court as well as Appellate Authority accepted the case of petitioners that a portion of the leasehold property was surrendered and the subsisting lease is only in respect of the remaining portion. Respondents challenged that order before this court in CRP 1952 of 2002. The suit was filed when the revision was pending. In the plaint itself respondents sought permission of the court to amend the plaint or the relief subject to the result of the CRP. Under Ext.P3 order this court did not accept the case of the petitioners of partial surrender and held that the tenancy subsists in respect of the whole building and petitioners are laible to pay the agreed rent for the entire building. Subsequently petitioners surrendered the building. After disposal of the revision, respondents filed I.A. 5086 of 2006 under Rule 17 of Order VI of Code of Civil Procedure to amend the plaint. The amendment sought for is to convert the suit for account to a suit for realization of arreares of rent due. In support of the said relief relevant allegations are sought to be raised in the plaint to the effect that pursuant to Ext.P3 order of this court, petitioners are laible to pay the agreed rent for the entire period and as it is not WPC27917/07 3 paid they are entitled to realise the arrears rent. Petition was opposed by the petitioners contending that by the proposed amendment the nature of suit is being altered and new cause of action is being added and part of the claim for arrears of rent is barred by time and therefore it cannot be allowed. Under Ext.P6 order learned Sub Judge allowed the application. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned senior counsel appearing for petitioners and respondents were heard. 3. On hearing the senior counsel on both sides and going through Ext.P6 order I find no reason to interfere with Ext.P6 order permitting respondents to amend the plaint. It cannot be disputed that a suit on account could be permitted to be amended by converting it as a suit for realization of money. It cannot be disallowed on the ground of altering the nature or character of the suit. Similarly, a new cause of action could be introduced in the plaint by amendment of that cause of action has arisen subsequent to the institution of suit and it is necessary to resolve the dispute in the suit. So also, an WPC27917/07 4 application for amendment to include a plea which is barred by time could also be allowed, provided defendants are permitted to defend the claim by filing an additional written statement. In such circumstances, I do not find it necessary to interfere with the order granting permission to amend the plaint. Petitioners are at liberty to file an additional written statement taking up all the defence available including the plea of bar of limitation, in respect of the claim introduced by the amendment. Learned Sub Judge is to dispose the suit untramelled by any observation by Ext.P6 order. Learned Sub Judge is also to consider in the suit, when the amended portion of the plaint came into effect and whether the claim is barred or not. Writ petition is disposed of accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-