IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 30898 of 2009(O) -------------------------- OS.75/2007 of SUB COURT, NEYYATTINKARA .................... PETITIONER: ----------------- SUKESINI, W/O.LATE BHASURANGAN NAIR, BHASIBHAVAN, ANAPADU, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.GOPAN RESPONDENT: -------------------- OMANAKUNJU.L, D/O.LEKSHMI AMMA, SREEVISAKHAM, ANAPADU, MALAYINKEEZHU, THIRUVANANTHAPURAM. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.30898/2009 APPENDIX PETITIONER'S EXTS: EXT.P1 PHOTOCOPY OF HE PLAINT O.S.NO.75/2007 OF THE SUB COURT, NEYYATTINKARA FILED BY THE PETITIONER. EXT.P2 PHOTOCOPY OF THE WRITTEN STATEMENT DTD. 4/9/2007 FILED BY THE RESPONDENT BEFOE THE SUB COUR, NEYYATTINKARA. EXT.P3 PHOTOCOPY OF THE PROOF AFFIDAVIT DATED 1-2-2008 FILED BY THE PETITIONER BEFORE THE SUB COURT, NEYYATTINKARA. EXT.P4 TRUE PHOTOCOPY OF THE PROOF AFFIDAVIT DATED 1-2-2008 FILED BY THE RESPONDENT BEFORE THE SUB COURT, NEYYATTINKARA. EXT.P5 PHOTOCOPY OF I.A.NO.1276/2008 IN O.S.NO.75/2007 DATED 28/7/2008 BEFORE THE SUB COURT, NEYYATTINKARA. EXT.P6 PHOTOCOPY OF THE OBJECTION TO I.A.NO.1276/08 FILED BY THE PETITIONER IN O.S.NO.75/2007. EXT.P7 PHOTOCOPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE RESPONDENT IN O.S.NO.75/2007 DATED 2/6/2009. EXT.P8 PHOTOCOPY OF THE OBJECTION FILED BY THE RESPONDENT IN O.S.NO.75/2007 DATED 7/7/2009. EXT.P9 PHOTOCOPY OF THE I.A.NO1416/2009 IN O.S.NO.75/2007 OF THE SUB COURT, NEYYATINKARA DATED 12/8/2009 EXT.P10 PHOTOCOPY OF THE OBJECTION IN I.A.NO.1416/2009 IN O.S.NO.75/2007 OF THE SUB COURT, NEYYATTINKARA DATED 25/8/2009. EXT.P11 PHOTOCOPY OF THE ORDER DATED 8/10/2009 IN I.A.NO.1416/2009 IN O.S.NO.75/2007 OF THE SUB COURT, NEYYATTINKARA. HARUN-UL-RASHID,JJ. ------------------------------- W.P.(C).NO. 30898 OF 2009 ------------------------------- DATED THIS THE 24TH DAY OF SEPTEMBER, 2010 JUDGMENT This writ petition is filed seeking to set aside Ext.P11 order passed by the Sub Court, Neyyattinkara in I.A.No.1416/09 in O.S.No.75/07. Petitioner is the plaintiff in O.S.No.75/07 filed for realisation of Rs.1,00,000/- with interest and cost from the respondent on the basis of a promissory note alleged to have been executed by the respondent. Ext.P1 is the copy of the plaint and Ext.P2 is copy of the written statement. In Ext.P2 the defendant contended that the promissory note is a fabricated document by forging his signature and as such the document is ab initio void and the same is legally invalid. The issues in the suit were framed on 18-10-2007 and the case was listed to 1-2-2008 for trial. Both the plaintiff and defendant filed proof affidavit on 1-2-2009. On 4/2/2008 the respondent has cross-examined the petitioner and her witnesses. The case was adjourned to 9/7/2008 for the cross- -2- WP(C).No.30898/09 examination of PW-3. On that day the witness was present, but neither the respondent nor her counsel was present and therefore PW-3 was not cross-examined. The learned Sub Judge closed the evidence and an ex parte decree was passed on 9/7/2008. 2. The respondent filed I.A.No.1276/08 on 28/7/08 for setting aside the ex parte decree. Ext.P5 is the copy of the said IA. Ext.P6 is the photocopy of the objection filed by the petitioner. On 26/5/2009 the ex parte decree was set aside. On 26/5/2009 the respondent filed an additional written statement taking new defence and contention. Ext.P7 is copy of the additional written statement. It is said that the additional written statement was filed without seeking leave of the court. In Ext.P7 different story was set up. It is pleaded that the present case filed by the petitioner is false and frivolous, at the instigation of one Lathika with an evil design to extract more money from the defendant unlawfully. The additional written statement was filed on 2/6/2009. On 12/8/2009 again the respondent filed I.A.No.1416/2009 for amending the written -3- WP(C).No.30898/09 statement. By the amendment the respondent wanted to incorporate new and inconsistent pleading. This application was seriously opposed by the petitioner herein, who is the plaintiff in the suit. The plaintiff opposed the amendment contending that if the same is allowed, it will change the nature and character of the suit and stated that the amendment application was filed with mala fide intention to prolong and protract the trial. Copy of I.A.No.1416/2009 is produced as Ext.P9 and copy of the objection is produced as Ext.P10. 3. Ext.P11 is the order passed by the learned Sub Judge. Under Order VI Rule 17 of the CPC the amendment can be allowed by the court, if the amendment is necessary for the purpose of determining the real questions in controversy between the parties. It is provided that no application for amendment shall be allowed, after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of the trial. The -4- WP(C).No.30898/09 respondent filed the amendment application raising totally inconsistent contentions opposed to the pleadings in the original written statement. The respondent has not even pleaded that in spite of due diligence, he could not have raised the matter before commencement of the trial. On going through the pleadings sought to be inserted by the proposed amendment, it is seen that in fact there was no difficulty for the respondent to file an application for amendment before the commencement of the trial. The court did not apply its mind nor expressed the view that the respondent in spite of due diligence was prevented from filing amendment application before commencement of the trial. Going by the pleadings in Ext.P2 written statement, Ext.P7 additional written statement and Ext.P9 application for amendment and considering the objections filed by the petitioner, there is every justification for the petitioner/plaintiff to contend that the application is with out any bona fides and is intended to delay and protract the case and also to cause hardships to the petitioner. Without going into the -5- WP(C).No.30898/09 merits of the application and without considering the serious objections raised against the amendment application, the court below simply allowed the application by passing a cryptic order. 4. In the facts and circumstances stated in detail in the preceding paragraphs, this Court is of the view that the amendment application filed long after the commencement of the trial is not maintainable in view of the proviso to Order VI Rule 17 CPC. On merits also this Court finds that no valid grounds are made out to sustain the application for amendment. In the result, the writ petition is allowed. Ext.P11 order is set aside. The court below shall dispose of the suit within a period of three months from the date of receipt of a copy of this judgment. HARUN-UL-RASHID, Judge. kcv.