IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 WP(C).NO. 18861 OF 2010(O) ---------------------------------------- AGAINST THE ORDER DATED 11/01/2010 IN IA.9255/09 IN OS.729/2008 OF II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------------- MAIJO JOSEPH, S/O.T.M. JOSEPH, AGED 45 YEARS, RESIDING AT NO.7, II AVENUE, BOAT CLUB ROAD, RAKJA ANNAMALAIPURAM, CHENNAI - 600 028. BY ADV. SRI.R.AZAD BABU RESPONDENT(S): --------------------------- 1. DR. HABEEB, S/O. SICKANDER, MEDICAL PROFESSION, RESIDING AT C. 5/2508, GOLD LINKS ROAD, KOWDIAR, THIRUVANANTHAPURAM. 2. K. MATHAI, S/O. KUNJU NINAN, BUSINESS, RESIDING AT AALUMMOOTTIL HOUSE, PATHANAPURAM TALUK, KOLLAM. 3. K. MAMACHAN, S/O. KUNJU NINAN, BUSINESS, RESIDING AT AALUMMOOTTIL HOUSE, PATHANAPURAM TALUK, KOLLAM. 4. T.G. GOPINATHAN, S/O.T.A. GOVINDAN, RESIDING AT GURU VILAS, M.G.R. ROAD, PALAVAKKOM, CHENNAI. ADV. SRI.V.AJAKUMAR FOR R1TO3 SRI.T.M.CHANDRAN FOR R1TO3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF PLAINT DATED 19.8.2008 IN O.S. NO.729 OF 2008 FILED BY THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY RESPONDENTS 1 TO 3 IN THE SAID SUIT. EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY RESPONDENTS 2 AND 4 IN THE SAID SUIT. EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR AMENDMENT SUBMITTED BY THE RESPONDENTS. EXHIBIT P5 TRUE COPY OF THE OBJECTIONS SUBMITTED BY RESPONDENTS EXHIBIT P6 TRUE COPY OF THE ORDER PASSED BY THE LEARNED SUB JUDGE DATED 11.1.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.18861 of 2010 ==================================== Dated this the 16th day of August, 2010 J U D G M E N T This Writ Petition is at the instance of plaintiff challenging Ext.P6, order allowing Ext.P4, application whereby respondents- defendants are permitted to incorporate a counter claim in the written statement by amendment. Petitioner sued respondents for recovery of money with reference to certain agreements for sale. Respondents-defendants resisted the suit contending that breach was on the part of petitioner-plaintiff. Thereafter there was an ex parte decree in favour of petitioner which was later set aside and the case was posted in the list for trial on 16.01.2010. It is in the meantime that respondents filed Ext.P4, application for amendment of written statement as above stated. Vide the proposed counter claim they sought to recover damages to the tune of Rs.1,74,03,333.30. Petitioner resisted the application on various grounds. Learned Sub Judge vide Ext.P6, order dated 11.01.2010 allowed the application on payment of costs of Rs.1,500/- making it clear that issue regarding limitation as to the counter claim is not a matter to be decided at that stage. It is contended by learned counsel for petitioner that counter claim is W.P(C) No.18861 of 2010 -: 2 :- hopelessly barred by limitation and hence court below was not justified in allowing such a counter claim to be incorporated by amendment. Learned counsel for respondent placing reliance on the decisions in K.S.E.B. v. C.S. Company (1996 [2] KLJ 333) and Thomas v. Chacko (1998 [2] KLT SN 36 [Case No.42]) contends that in so far as the written statement contains basic foundation on which counter claim is sought to be laid by amendment it cannot be said that counter claim is barred by limitation. 2. Binding decisions on the point say that there is no rule that a claim which is time barred as on the date of seeking amendment shall not be allowed but normally the courts do not allow such amendments to be made to divest the opposite party of a right he has acquired on account of the bar of limitation. Decisions relied on by learned counsel for respondents say that when basic foundation based on which the amendment is sought for is already laid in the pleadings no question of limitation would arise. According to the respondents they have already laid necessary foundation in the written statement alleging that breach of contract was on the part of petitioner, what is claimed by way of counter claim is damages consequent to such breach W.P(C) No.18861 of 2010 -: 3 :- and in the circumstances no question of limitation would arise. 3. It is seen from Ext.P4, counter claim that compensation is claimed from petitioner on two heads; amount mutually agreed as compensation to be paid by petitioner to respondents towards loss sustained by the latter due to breach of contract by petitioner and the amount spent by respondents to construct compound wall as demanded by the petitioner. Learned counsel for respondents contends that the basis for the claim for damages on the above two heads is the breach committed by the petitioner. It is not necessary for me to go into the question at this stage since learned Sub Judge has made it clear that at the stage of considering request for amendment of written statement to incorporate counter claim it is not necessary to go into the question of limitation. I make it clear that it is open to parties to agitate the issue regarding limitation as regards the counter claim at the stage of trial. 4. Yet another argument advanced by learned counsel for petitioner is that at the belated stage amendment ought not have been permitted. True, suit was filed in the year 2008 and it is after the suit was once decreed ex parte, later set aside and immediately before the case was to be taken up for trial in the W.P(C) No.18861 of 2010 -: 4 :- list on 16.01.2010 that request for amendment of written statement came. But I must bear in mind that in the nature of the claim made by respondents cause of action for the claim for damages arose prior to the filing of the written statement or the date fixed for filing of the same. Hence it was within the power of court to permit respondents to bring in the counter claim by amendment. 5. A further contention advanced by learned counsel is that since evidence was recorded before the suit was decreed ex parte it must be taken that amendment is sought after commencement of trial. Attempt of learned counsel is to bring the amendment within the scope of the proviso to Order VI Rule 17 of of the Code of Civil Procedure (for short, “the Code”). Learned counsel argues that when issue is framed it must be taken that trial has commenced. 6. I am afraid that argument cannot be accepted. The trend of recent decisions is that the expression 'trial' occurring in the proviso to Order VI Rule 17 of the Code must be given a limited meaning and that trial as referred to therein commences at the time of filing of proof affidavit. True, in this case affidavit for obtaining ex parte decree was preferred prior to the ex parte W.P(C) No.18861 of 2010 -: 5 :- decree was passed. But that was for the limited purpose of recording evidence in the suit to pass an ex parte decree. But that decree has been set aside and fresh trial has to be conducted. I am unable to accept the argument that Ext.P4, application has been made after trial has commenced and hence is hit by the proviso to order VI Rule 17 of the Code. Having gone through the order under challenge and heard counsel on both sides I do not find reason to interfere with the impugned order. The delay if any in the matter is corrected by the common curative costs of Rs.1,500/-. But I make it clear that as the learned Sub Judge also has observed issue whether counter claim is barred by limitation will be decided at the time of trial. If petitioner is otherwise entitled it will be open to him to file replication in answer to the counter claim incorporating plea of limitation as well. Writ Petition is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv