IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 WP(C).No. 17663 of 2009(O) -------------------------------------- AS.70/2004 of PRL.SUB COURT,THALASSERY .................... PETITIONER (DEFENDANT NO.1/APPELLANT/PETITIONER IN I.A: -------------------------------------------------------------------------------------------- K.BHASKARAN, S/O.KRISHNAN, AGED 59 YEARS "PRATHIBHA VIDYA BHAVAN", CHOVVA, KANNUR. BY ADV. MR.R.SURENDRAN RESPONDENTS (PLAINTIFFS & D2/RESPONDENTS/RESPONDENTS IN IA: -------------------------------------------------------------------------------------------------------- 1. O.C.SARADHA, W/O.P.C.KORAN, AGED 86 YEARS, RESIDING AT 'POORNIMA', NEAR TALAP HOUSING COLONY, KANNUR. 2. P.C.SUDHEENDRAN, S/O.KORAN, AGED 56 YEARS, RESIDING AT 'POORNIMA', NEAR TALAP HOUSING COLONY, KANNUR. 3. P.C.SUDHEER, S/O.KORAN, AGED 48 YEARS, RESIDING AT 'POORNIMA', NEAR TALAP HOUSING COLONY, KANNUR. 4. P.C.SUMITHRAN, S/O.KORAN, AGED 41 YEARS, RESIDING AT 'POORNIMA', NEAR TALAP HOUSING COLONY, KANNUR. 5. P.C. SURESH, S/O.KORAN, AGED 45 YEARS, HAVING PERMANENT RESIDENCE AT 'POORNIMA', NEAR TALAP HOUSING COLONY, KANNUR. WORKING ABROAD AT P.B.NO.863, PIN CODE 612, AISWA, SULTANATE OF OMAN. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.17663 OF 2009 (O) ----------------------------------- Dated this the 25th day of June, 2009 J U D G M E N T The writ petition is filed by the 1st defendant in O.S.No.86/1995 on the file of the Additional Munsiff's Court, Kannur. Suit was one for declaration of title and mandatory injunction, which was instituted by the respondents 1 to 4 in this petition as plaintiffs. The 5th respondent in the petition was the 2nd defendant in the suit. The trial court decreed the suit in favour of the plaintiffs, against which, the petitioner/ 1st defendant preferred an appeal. The appeal numbered as A.S.No.70/2004, it is stated, after being admitted and taken on file is pending for hearing. Petitioner moved an application under Order VI Rule 17 of CPC for amending his written statement in the appeal. The learned Sub Judge, after hearing that application dismissed it under Ext.P4 order. Correctness and propriety of that oder is impeached by filing this writ petition invoking the supervisory jurisdiction vested with this WPC.17663/09 2 Court under Article 227 of the Constitution of India. 2. Having regard to the submissions made by the counsel and taking note of the facts and circumstances involved with reference to Ext.P4 order impugned in the petition, I find notice to the respondents is not necessary and it is dispensed with. The learned Sub Judge, it is seen, has dismissed the application for amendment of the written statement moved by the petitioner/appellant holding that the records have not been called for in the appeal, and, further, sufficient grounds have not been made out for allowing the amendment application which has been moved at a belated stage. The course adopted by the learned Sub Judge for considering the amendment application without even awaiting for the records of the lower court, which have to be called for in an appeal as it is rehearing of a suit, is not at all proper. Further more, when an amendment of the pleading is sought for by any of the parties in an appeal, it is proper and advisable to consider that petition at the stage of hearing the appeal. If the amendment is to be allowed, naturally, the WPC.17663/09 3 opposite party should be granted permission to submit his reply thereto, which very often may require setting aside the impugned judgment and remitting the case to the court below for fresh disposal. Sometimes, the amendment may be of innocuous nature and the appellate court, without remission, can pass appropriate orders and enter a final decision after giving opportunity to the other sides to meet that amendment. Whatever that be, it is always advisable to hear an amendment application moved at the time of hearing of the appeal so that the whole gamut of issues involved will be presented before the court to decide whether such amendment is required to be allowed or not. Ext.P4 order is set aside with direction to the learned Sub Judge to consider and dispose it along with the appeal. Writ petition is disposed with the above observations. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009