IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(C).NO. 22469 OF 2009(O) ----------------------------------------- OS.54/2004 OF SUB COURT, KASARAGOD .................... PETITIONER(S): ----------------------- ZUHARA.B.M., W/O.MUHAMMED RAZAK, GARDEN HOUSE, UDYAVAR VILLAGE, KASARAGOD TALUK. BY ADV. SRI.P.K.MUHAMMED RESPONDENT(S): --------------------------- 1. SURENDRA MANJESHWARA, S/O.LATE PANJI, YELLUPADAPU, HOSANGADI, MANJESHWAR, KASARAGOD TALUK AND DISTRICT. 2. SUSHILA, D/O.LATE SUNDARA, RESIDING AT SUNDARA KAMALA NIVAS, VENKAPPAYY COMPOUND, ATTAVAR, CHAKRAPANI, MANGALORE, D.K.DIST., KARNATAKA. 3. SADASHIVA, S/O.LATE SUNDARA, RESIDING AT SUNDARA KAMALA NIVAS, VENKAPPAYY COMPOUND, ATTAVAR, CHAKRAPANI, MANGALORE, D.K.DIST., KARNATAKA. 4. SUMITRA, D/O.LATE SUNDARA, RESIDING AT SUNDARA KAMALA NIVAS, VENKAPPAYY COMPOUND, ATTAVAR, CHAKRAPANI, MANGALORE, D.K.DIST., KARNATAKA. 5. SURESH, S/O.LATE SUNDARA, RESIDING AT SUNDARA KAMALA NIVAS, VENKAPPAYY COMPOUND, ATTAVAR, CHAKRAPANI, MANGALORE, D.K.DIST., KARNATAKA. 6. SHIVARAMA, S/O.LATE SUNDARA, RESIDING AT SUNDARA KAMALA NIVAS, VENKAPPAYY COMPOUND, ATTAVAR, CHAKRAPANI, MANGALORE, D.K.DIST., KARNATAKA. 7. SUDHEER RAJ, S/O.LATE SUNDARA, RESIDING AT SUNDARA KAMALA NIVAS, VENKAPPAYY COMPOUND, ATTAVAR, CHAKRAPANI, MANGALORE, D.K.DIST., KARNATAKA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE APPLICATION IN I.A. NO.89 OF 2009 IN O.S. NO.54 OF 2004 ON THE FILE OF THE SUB COURT, KASARGOD. EXHIBIT P2 TRUE COPY OF THE COUNTER IN I.A. NO.89 OF 2009 IN O.S. NO.54 OF 2004 FILED BY THE PETITIONER DATED 19.2.2009. EXHIBIT P3 TRUE COPY OF THE AMENDMENT APPLICATION I.A. NO.139 OF 2009 IN O.S. NO.54 OF 2004 FILED BY THE PETITIONER DATED 6.3.2009. EXHIBIT P4 TRUE COPY OF THE COUNTER FILED BY THE FIRST RESPONDENT IN I.A. NO.139 OF 2009 DATED 11.3.2009. EXHIBIT P5 TRUE COPY OF THE COUNTER FILED BY OTHER RESPONDENTS IN I.A. NO.139 OF 2009 DATED 9.3.2009. EXHIBIT P6 TRUE COPY OF THE ORDER IN I.A. NO.139 OF 2009 IN O.S. NO.54 OF 2004 PASSED BY THE SUBORDINATE JUDGES COURT, KASARGOD. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.22469 of 2009 ==================================== Dated this the 11th day of August, 2010 J U D G M E N T Respondent Nos.1 to 3, 5 and 6 are served on this petition. Since notice to respondent Nos.4 and 7 returned unclaimed it was ordered on 05.07.2010 that service of notice on them is complete. 2. This Writ Petition is in challenge of Ext.P6, order dated 12.06.2009 dismissing I.A. No.139 of 2009 in O.S. No.54 of 2004 of the court of learned sub Judge, Kasargod. That is an application for amendment of the plaint moved by petitioner to challenge a document purporting to be an assignment order passed by the Tahsildar concerned and produced by respondent No.1 when he was examined as D.W.1. 3. Petitioner sued respondents for a decree for declaration of title in respect of 67 cents of land and for consequential reliefs. After evidence of petitioner was over when D.W1 was in the box he produced a document to be introduced in evidence. He also filed Ext.P1, application to receive the same in evidence stating that he got the document only on the previous day and the same is necessary to prove his case. W.P(C) No.22469 of 2010 -: 2 :- Notwithstanding objection raised by petitioner learned Sub Judge allowed the application and permitted respondents to introduce the said document in evidence. Following that petitioner filed Ext.P3, application for amendment of the plaint. That application was dismissed by the learned Sub Judge observing that application is preferred after commencement of trial and that amendment cannot be permitted. It is contended by learned counsel for petitioner that Ext.P6, order dismissing the application cannot be sustained. 4. I have gone through Ext.P3, application. What is sought to be incorporated by way of amendment is a challenge to the document introduced by respondent No.1 while he was examined as D.W.1. That document purported to be an order of assignment issued by the Tahsildar concerned in respect of the disputed property. By Ext.P3, application petitioner wanted to state in the plaint that the said document is the result of fraud, coercion and misrepresentation and that the document is not binding on him or the suit property. 5. Reason for rejection of Ext.P3, application is that it came after commencement of the trial. Learned Sub Judge forgot that occasion for seeking amendment was introduction of the document by respondent No.1 when he was examined as D.W.1. W.P(C) No.22469 of 2010 -: 3 :- Necessarily application for amendment could have been made only after commencement of trial. What is attempted to be incorporated by way amendment is a challenge to the document produced by respondent No.1 at the time of his evidence. In the nature of contention petitioner has against that document it is only just and proper that petitioner is permitted to amend the plaint challenging the document. Learned Sub Judge in the circumstances was not justified in dismissing the application. Exhibit P6, order cannot stand, is liable to be set aside and I do so. Resultantly, Writ Petition is allowed. Exhibit P6, order on I.A.No.139 of 2009 in O.S. No.54 of 2004 is set aside and that application is allowed. Petitioner shall carry out amendment within 14 (fourteen) days of receipt of a copy of this judgment in the trial court or within such time as that court permits. Needless to say that respondents will get the opportunity to file additional written statement in answer to the amened plaint. THOMAS P. JOSEPH, JUDGE. vsv