IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 OP(C).No. 511 of 2011(O) ------------------------ OS.151/2008 of SUB COURT, PALA .................... PETITIONER ------------------------------ SHAJAHAN, S/O.ABOOBACKER, KARIPPAYIL VEEDU, KANJIRAPPALLY KARA & VILLAGE AND TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER M.T.RASHEED, S/O.THAMPIKUNU, MOOTHEDATHU VEEDU, PERUVANTHANAM KARA & VILLAGE, PEERUMEDU TALUK. BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENT(S): -------------------- 1. ABOOBACKER, KARIPPAYIL VEEDU, KANJIRAPPALLY KARA AND VILLAGE, KANJIRAPPALLY TALUK. 686 507. 2. A.P.SHAJAHAN, S/O.KANI RAVUTHER, AKKATTUPARAMBIL, EDAKKUNNAM KARA & VILLAGE.686507. 3. SHUKKOOR, S/O.SAINUDHEEN, PULIMOOTTIL VEEDU, EDAKKUNNAM KARA AND VILLAGE, KANJIRAPPALLY TALUK. 686 507. R1 & 2 BY ADVS. SRI.T.V.GEORGE SRI.JIMMY GEORGE (THADATHIL) FOR R1 R3 BY ADV. SRI.BIJU .C. ABRAHAM THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK OP(C).No. 511 of 2011(O) ----------------------------- APPENDIX ----------- PETITIONER'S EXHIBITS ---------------------------- EXT.P1 COPY OF THE PLAINT FILED BY THE PETITIONER. EXT.P2 COPY OF THE WRITTEN STATEMENT EXT.P3. COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER DATED 8.11.2010 EXT.P4. CPY OF THE OBJECTION DATED 30.11.2010 BY RESPNDENTS 1 AND 2. EXT.P5. COPY OF THE OBJECTION BY THE 3RD RESPONDENT. EXT.OP6. COPY OF THE ORDER DATED 13.12.2010 IN I.A. NO.1648 OF 2010 IN O.S. NO.151 OF 2008, SUB COURT, PALA. RESPONDENT'S EXHIBITS : NIL ----------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.511 of 2011 -------------------------------------- Dated this the 16th day of November, 2011. JUDGMENT Petitioner is the plaintiff in O.S.No.151 of 2008 of the court of learned Sub Judge, Pala. The suit as originally filed is one for a declaration that sale deed No.4945 of 2006 of the SRO, Kanjirappally executed by the 1st respondent in favour of the 2nd respondent and two subsequent assignment deeds based on that document are not binding on petitioner or the suit property. Petitioner filed the suit through his power of attorney holder as petitioner was abroad during the relevant time. In Ext.P1, plaint what petitioner pleaded is that he has been working in Saudi Arabia for the last 16 years and while so, in respect of the suit property belonging to him, his father – the 1st respondent sought a general power of attorney to be executed in his name for the management and administration and to facilitate a loan being raised on the security of that property, believing that representation petitioner happened to execute a general power of attorney in favour of the 1st respondent but he neither took it before the Registrar for registration nor got it registered. The 1st respondent without the knowledge and consent of petitioner produced that power of attorney in the Sub Registrar's Office, Kanjirappally and got it registered as document No.40 of 1999. In paragraph 4 of Ext.P1, plaint it is stated that petitioner believed the representation made by the 1st respondent (as aforesaid) and happened to sign the general power of attorney prepared by the 1st respondent and registered it. It OP(C)No.511/2011 2 is further alleged that later, petitioner learnt that misusing the power of attorney which was given for management of the property and to facilitate availing loan, 1st respondent created document No.4945 of 2006 in favour of the 2nd respondent and later the 2nd respondent has assigned the property in favour of the 3rd respondent (as per document No.3382 of 2007). Document No.3905 of 2007 executed by the 1st respondent directly in favour of the 3rd respondent based on the general power of attorney was also challenged on the above allegations. 2. Contesting respondents resisted the averments in the plaint. 3. In the meantime on a request made by petitioner, 3rd respondent produced the registered power of attorney and the original assignment deeds referred above. That was followed by petitioner filing Ext.P3, application for amendment of the plaint. That application was resisted by the contesting respondents and the learned Sub Judge by Ext.P6, order dismissed that application. Ext.P6, order is under challenge in this Original Petition. 4. Learned counsel for petitioner has contended that learned Sub Judge has dismissed Ext.P3, application for the reason that there is no record to show that the original documents the 3rd respondent had produced in court were verified by the petitioner with permission of the court but in Ext.P3, application for amendment it is stated that on verification of the original documents it is revealed that the power of attorney registered as document OP(C)No.511/2011 3 No.40 of 1999 is not the one executed by petitioner. That stand of petitioner cannot be accepted, learned Sub Judge observed. It is pointed out by the learned counsel that what happened is that when the 3rd respondent produced the original documents before court, its photocopy was given to the counsel for petitioner which was verified and following that, Ext.P3, application for amendment was preferred. It is contended that it is within the right of petitioner, even if there is any admission in the plaint to explain away such admission. What is stated by petitioner in Ext.P3, application is only an explanation of the so-called admission in the plaint and in the circumstances learned Sub Judge ought to have allowed Ext.P3, application. 5. Learned counsel for respondents 1 to 3, while supporting Ext.P6, order contended that the attempt is to wriggle out from the admissions petitioner has made in the plaint. Learned counsel have referred me to the relevant paragraphs in the plaint where according to them there is a specific admission regarding the execution and registration of power of attorney No.40 of 1999 in favour of the 1st respondent and that based on that, 1st respondent executed the documents in favour of respondents 2 and 3. In that view of the matter amendment was not allowable and the learned Sub Judge was right in rejecting the prayer, it is contended. 6. So far as the first reason stated by the learned Munsiff is concerned, I am inclined to think that for that reason alone the prayer for amendment should not have been rejected. For, when the 3rd respondent OP(C)No.511/2011 4 produced the original documents before the court, its photocopy may have been furnished to the counsel for petitioner which was verified and following that, Ext.P3, application for amendment was preferred. 7. The crucial question is whether the amendment prayed for could be allowed, whether it would amount to taking away any admission if any made by petitioner in the plaint and at any rate, petitioner could be given permission to explain the admission if any. 8. I referred to Ext.P1, plaint. In paragraph 4 of the plaint, it is stated that petitioner had executed a general power of attorney (ofcourse on the representation allegedly made by the 1st respondent) and though according to the petitioner, he had not got it registered, it is not disputed that the said power of attorney was registered as document No.40 of 1999. In paragraph 5 of Ext.P1, plaint it is stated that petitioner believed the representation made by the 1st respondent and happened to sign the power of attorney prepared by the 1st respondent and registered it. Thus, there is some merit in the contention raised by the respondents (though I am not pronouncing final verdict in the matter). Regarding execution and registration of the power of attorney as document No.40 of 1999 there is a specific statement made by petitioner as to in what circumstances that document was executed and registered. OP(C)No.511/2011 5 9. No doubt, an admission made though cannot be withdrawn by amendment, it is within the right of party who made the admission to explain away the circumstances under which the admission, so-called was made. Therefore, if petitioner has got an explanation as to in what circumstances he made so-called admissions in the plaint, there is no reason why petitioner shall not be permitted to make that explanation. 10. On going through Ext.P3, it is seen that it is intended to delete certain statements made in the plaint. That cannot be allowed by way of an amendment. As such Ext.P3, application cannot be allowed and the learned Sub Judge was right in rejecting the said application. 11. As aforesaid, right of petitioner to request the court to make any explanation cannot be negatived particularly when the trial of the case has not commenced. It is open to the petitioner to file separate application to incorporate any additional statement in the plaint explaining what he has stated in the plaint and based on that explanation seek amendment of relief No.A in the plaint. Resultantly this Original Petition is disposed as follows: i. While no interference is called for with Ext.P6, order it is made clear that it is open to the petitioner to file fresh application for amendment to incorporate any additional statement in the plaint (without altering or deleting OP(C)No.511/2011 6 any statement already made in Ext.P1) explaining the so-called admission if any made by petitioner in the plaint and based on that explanation seek amendment of relief No.A in the plaint as well. ii. If any such application is made, learned Sub Judge shall decide that application as provided under law after hearing both sides. iii. It is made clear that based on the averments in the plaint I have not expressed any opinion as to acceptance or otherwise of the contentions raised by the parties. THOMAS P.JOSEPH, Judge. cks