IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 WP(C).No. 29023 of 2006(E) -------------------------- OS.275/2002 of III ADDL.SUB COURT, KOZHIKODE .................... PETITIONERS: ------------ 1. E.N.SANIL KUMAR, S/O.RAMUNNIKUTTY, RESIDING AT EDAKUNI NEENDOKKIL HOUSE, EYYAD DESOM, SIVAPURAM VILLAGE, KOYILANDI TALUK, KOZHIKODE DISTRICT. 2. K.P.RAVEENDRAN, S/O.CHATHU, RESIDING AT KARANTHAMPOYILIL HOUSE, CHERUKKAD DESOM, KAYANNA VILLAGE, KOYILANDI TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS: ------------- 1. T.K.GANGAN MENON, S/O.P.K.K.MENON, KASABA AMSOM, KASABA VILLAGE, KOYILANDI TALUK, KOZHIKODE DISTRICT. 2. KUMARI, D/O.LAKSHMIKUTTY, RESIDING AT KOKKURITHEKKEVEETTIL HOUSE, VILVATTOM DESOM, CHEROOR DESOM, THRISSUR DISTRICT AND TALUK. R1 BY ADV. SRI.D.KRISHNA PRASAD SMT.O.K.SANTHA GOVERNMENT PLEADER, SMT.R.BINDU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.29023/2006 APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE PLANT. EXT. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT. EXT. P3: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE AMENDMENT APPLICATION. EXT. P4: COPY OF THE COUNTER STATEMENT FILED BY THE 1ST RESPONDENT. EXT. P5: COPY OF THE ORDER DATED 22.9.2006. /TRUE COPY/ P.A. TO JUDGE JP M.N.KRISHNAN, J. ------------------------------------------- W.P.(C).No.29023 of 2006 ------------------------------------------- Dated this the 6th day of March, 2008 JUDGMENT This writ petition is preferred against the order of the Subordinate Judge, Kozhikode in I.A.No.212/2004 in O.S.No.275/2002 whereby the court below refused to allow the prayer for amendment of the plaint. 2. The suit is one for specific performance of a contract. There are various contentions and in this application we are concerned only with the amendment with respect to the schedule of the plaint. As per the averment in the plaint, the schedule property sought to be assigned is 17 cents of property after the sale of 5 cents of the total extent of 22 cents. Now by the proposed amendment, the party wants to substitute it to incorporate as item one as 7.83 cents and other as 7.19 cents giving the description of the property. 3. The learned counsel for the writ petitioners would submit before me that this amendment is sought only to make the things clear. So that in the event of a decree being passed, WPC29023/2006 2 there must be an executable decree and to make the points more precise and clear, he wants to incorporate the amendment. On the other hand, the learned counsel for the respondents would contend that such an amendment cannot be allowed going beyond the terms of the agreement and if at all there is any remedy to the party it must be by resorting to Section 26 of the Specific Relief Act. Section 26 of the Specific Relief Act deals with a situation that when, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not express their real intention, then one can have recourse to law to get it rectified. Now what the plaintiff wants to incorporate is not to change the property but he wants to give a specific description with respect to the property which he wants to get by virtue of a decree for specific performance or in other words according to the plaintiff, the said amendment is necessary for the purpose of passing an executable decree. Whether the plaintiff is entitled to get the specific performance of the decree of 17 cents or whether the person who has executed the agreement has the power to do it etc. are factors to be considered at the stage of trial. WPC29023/2006 3 4. I do not propose to go into any of these merits. But, I feel Section 26 may not stand in the way at all for the reason that there is no doubt regarding the intention of the parties with respect to the property covered by the agreement. What is sought to be incorporated is the specific details regarding that 17 cents. It will not change the character of the suit. It will not take away the valid defence of a defendant and it cannot be said that it is without bonafides. Under those circumstances, I feel it is an application that is liable to be allowed and I do so. 5. Therefore, the order under challenge is set aside and the application for amendment is allowed. Needless to say that the defendant in the suit be permitted to file additional written statement including all the contentions which he wants to raise inclusive of his argument referring to Section 26 of the Specific Relief Act. Any of the observations made in this order shall not detain the learned Sub Judge from considering the matter independently. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE csl