IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 3282 of 2009(N) --------------------------------------- AGAINST THE ORDER IN IA 491/2009 IN OS.448/2005 of PRL.SUB COURT, TRIVANDRUM . .................... PETITIONER(S): ------------------------ S.ANIL PRASAD, S/O.SIVA PRASAD, 29 YEARS, R/AT.S.P.LANE, PANDAKASSALA, CHIRAYINKIL. BY ADVS. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, COLLECTORATE VANCHIYOOR, THIRUVANANTHAPURAM. 3. EXCISE COMMISSIONER, EXCISE COMMISSIONERATE, VELLAYAMBALAM, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER SRI.RAVIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.3282/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. BNO.448/2005. P2:- COPY OF THE WRITTEN STATEMENT. P3:- COPY OF THE IA. BEFORE THE HONOURABLE SUB COURT, THIRUVANANTHAPURAM. P4:- COPY OF THE ORDER DTD. 28.1.2009 BEFORE THE PRINCIPAL JUDGE, TRIVANDRUM. TRUE COPY P.S.TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- W.P.(C).NO. 3282 OF 2009 ------------------------------- DATED THIS THE 28TH DAY OF SEPTEMBER, 2010 JUDGMENT This writ petition is filed challenging Ext.P4 order in I.A.No.491/09 in O.S.No.448/05 on the file of the Principal Sub Court, Thiruvananthapuram. Petitioner herein is the plaintiff in the said suit. Respondents are the State of Kerala and two other officials. The suit was filed by the Abkari Contractor for recovery of an amount of Rs.25,77,264/- on settlement of accounts between the parties. The plaintiff along with two other persons auctioned the right to conduct toddy shop Nos.66 to 93 in Group No.1 to 10 of Chathannoor Range for the financial year 1999-2000 for a bid amount of Rs.2,15,10,000/- and executed an agreement in favour of the State of Kerala setting out the terms and conditions of the contract and for payment of the kisth amount. The plaintiff committed default in payment of the kisth amount. So, the defendants initiated revenue recovery proceedings against the -2- WP(C).No.3282/2009 plaintiff and others. 2. The plaintiff filed I.A.No.491/2009 for amendment of the plaint by inserting alternate prayer to set aside the revenue sale of the solvency properties conducted by the defendants for realisation of the arrears of kisth amount due from him and others and to declare that the entire alleged arrears due from him sought to be recovered by revenue recovery proceedings stands wiped off on adjusting the price of the solvency properties appropriated by the Government and that the Government is not entitled to proceed with any further revenue recovery proceedings on that account. The solvency properties were put to sale during 1999-2000 and later the sale was confirmed. The learned Sub Judge observed that if there was any material irregularity or mistake in conducting the sale by the revenue recovery authorities, the petitioner/plaintiff could have applied for setting aside the sale under Section 53 of the Kerala Revenue Recovery Act and that there is no material on record to show that any such application has been submitted by -3- WP(C).No.3282/2009 him. The learned Judge also observed that it is obvious that the alternate prayer sought for by the plaintiff is clearly barred by Articles 58 and 99 of the Limitation Act. The court below also took notice of the fact that the suit is one of the oldest cases pending before the said court. The suit was originally filed as O.P.(Indi). No.4/2002 as early as on 31/1/2002. The issues in the case were framed as early as on 16/8/2006 and the case was included in the special list for trial after giving six posting dates extending a period of more than two years for pre-trial steps. The case was included in the special list for trial as early as on 15/9/2007. The case was finally listed for trial on 16/1/2009. It is observed that on that day the plaintiff was not ready to give evidence before court and on 19/1/2009 he filed the present application for amendment. The court below also found that the proposed amendment will change the nature and character of the suit. The court below considered the contentions of both sides elaborately and found that the proposed amendment will definitely change the character of the suit and that -4- WP(C).No.3282/2009 the alternate prayer sought for is prima facie barred by limitation. The court also on facts held that it is obvious that the attempt of the plaintiff is only to further delay the revenue recovery proceedings initiated by the Government against him for realisation of crores of rupees due from him. The court below further held that the application is not maintainable at this stage in view of the proviso to Order VI Rule 17 of the CPC. In the facts and circumstances of the case, the findings of the court below are just and reasonable. I find that no valid grounds are made out for interference under Article 227 of the Constitution of India. Writ petition fails and accordingly dismissed. HARUN-UL-RASHID, Judge. kcv.