IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).NO. 14920 OF 2010(O) ------------------------------------------ AGAINST THE ORDER DATED 04/03/2010 IN IA.426/2010 IN OS.74/2008 OF PRINCIPAL MUNSIFF,ALAPPUZHA .................... PETITIONER(S): --------------------- C.K. JYOTHIRAJ, S/O. V.K. KUNJIKUTTAN, SANDHYA NIVAS, CMC -6 CHERTHALA, ALAPPUZHA. BY ADV. SRI.K.RAMANATHAN RESPONDENT(S): ----------------------- 1. ASHRAF, AGED 57 YEARS, S/O. AHAMMED MAMMU, BUILDING NO.4/B2, BLOCL NO.3, PENTA QUEEN APARTMENTS, PALARIVATTOM, KOCHI. 2. T.T. AMMINIKUTTY, AGED 54 YEARS, D/O. THANKAMMA, AMMINI SADANAM, NORTH OF KURUPPANKULANARA JUNCTION, CMC 31, CHERTHALA NORTH VILLAGE, CHERTHALA, ALAPPUZHA. 3. HARIS MAJEED, AGED ABOUT 36 YEARS, S/O. ABDUL MAJEED, ROS MAHAL, CIVIL SATION WARD, ALAPUZHA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.14920 of 2010 ==================================== Dated this the 17th day of May, 2010 J U D G M E N T Writ Petitioner/plaintiff challenges Ext.P3, order allowing amendment of written statement and incorporation of counter claim at the instance of respondent No.1/defendant No.1. According to the petitioner suit property belonged to him, he having purchased the same from respondent No.2/defendant No.2 in the year 2006 as per document No.5682 of 2006 and apprehending trespass by respondents-defendants he sued for a decree for permanent prohibitory injunction. Respondent No.1 resisted the suit contending that he divorced respondent No.2 on 11.4.1997 and that at a time when they were living together as husband and wife he purchased property in the name of respondent No.2 utilising his funds. He claimed that he constructed a building in the said property with his funds. It is his further case that at that time there was an agreement between him and respondent No.2 as per which the latter had agreed to transfer the property to him but that was not done. Later respondent No.1 filed Ext.P1, application for amendment of the W.P(C) No.14920 of 2010 -: 2 :- written statement to incorporate certain additional contentions and to incorporate a counter claim to set aside document No.5862 of 2006 in favour of petitioner as null and void and also for a declaration that respondent No.1 is the absolute owner of the suit property. That application was resisted by the petitioner vide Ext.P2, objection. Grievance of the petitioner is that without considering the objection in Ext.P2, learned Munsiff has allowed the application for amendment and incorporate a counter claim. Learned counsel invited my attention to the decision of the Supreme Court in Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others (2009 [4 [ KLT Suppl. 1082 (SC) and submitted that none of the circumstances stated therein existed to allow amendment. 2. I have gone through the copy of the written statement filed by respondent No.1 in answer to the claim and also Ext.P1, application for amendment to incorporate additional contentions and counter claim. Throughout, contention of respondent No.1 is that suit property was purchased by him with his funds and that at a time when he and respondent No.2 were living as husband and wife an agreement was entered into between him and respondent No.2 as per which the latter had agreed to register the W.P(C) No.14920 of 2010 -: 3 :- document in respect of the suit property in his name but it was not done. It was in the above circumstances that he challenged validity of assignment deed in favour of the petitioner. It is not as if the contentions and counter claim sought to be incorporated by way of amendment are alien to the contentions raised in the written statement nor am I inclined to think that the contentions have altered the character of the suit. So far as the petitioner is concerned it continued to be a suit for injunction. 3. Going by the application for amendment of the written statement and to incorporate a counter claim, cause of action for counter claim has arisen before filing the written statement. Mere fact that there was some delay in filing the amendment application is not by itself a ground to reject the same. So far as the amendment of written statement is concerned it is settled position of law that court must be more liberal than when it considers an application for amendment of plaint. 4. Yet another objection raised is that amendment was sought for after commencement of the trial and in the light of the proviso to Order VI Rule 17 of the Code of Civil Procedure (for short, “the Code”) learned Munsiff should have rejected the same. In the application for amendment respondent No.1 has W.P(C) No.14920 of 2010 -: 4 :- stated that he has applied for copy of the document relied on by the petitioner and that he got copy of the document only after filling the written statement. Learned Munsiff after referring to the circumstances stated, found that the application for amendment is bona fide. Learned Munsiff has exercised the jurisdiction vested in him under Order VI Rule 17 of the Code as also the proviso thereto. Interference with the order of the court below under Order VI Rule 17 of the Code is required only when court has exercised the jurisdiction which it did not have or there was an illegal exercise of jurisdiction. I do not find either in this case requiring interference. Writ Petition fails and it is dismissed. THOMAS P. JOSEPH, JUDGE. vsv