IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 28051 of 2008(M) -------------------------- OS.61/2000 of PRINCIPAL SUB COURT,ATTINGAL .................... PETITIONER(S): ------------------------ MUHAMMED BASHEER, S/O ABDUL KHADER, K.K. NIVAS, KIZHUVILAM VILLAGE, KIZHUVILAM DESOM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MASOOD, S/O SHAHUL HAMEED, ERUTHALAMOOLA, ROADARIKATHU VEEDU, THOLIKKODE VILLAGE, THOLIKKODU DESOM. BY ADV. MR.J.JAYAKUMAR RESPONDENT(S): --------------------------- 1. MUHAMMED ISMAIL, S/O KASIM PILLAI, M.S.H.BUILDING, MAGHAVADI MURI, THEKKADA VILLAGE, KANAYAKULANGARA, 2. NABEEZATH, W/O MUHAMMED ISMAIL, M.S.H. BUILDING, MAGHAVADI MURI, THEKKADA VILLAGE, KANYAKULANGARA. R1 & R2 BY ADV. MR.SAJU.S.A THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28051/2008 M APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE I.A.1532/2004 FILED BY THE PETITIONER IN OS.61/2000 ON THE FILE OF THE SUB COURT, ATTINGAL. P2: COPY OF THE ORDER DTD. 29/05/2001 IN CRL.R.P.NO.23/1999 OF THIS HON'BLE COURT. P3: COPY OF THE ORDER DTD. 22/05/2004 IN C.C.NO.301/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, NEDUMANGADU. P4: COPY OF THE ORDER DTD. 30/06/2008 IN I.A.1532/2004 IN O.S.61/2000 ON THE FILE OF THE SUB COURT, ATTINGAL. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.28051 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 26th June, 2009 JUDGMENT The Writ Petition is filed by the plaintiff in O.S.No.61/2000 on the file of the Sub Court, Attingal. The respondents are the defendants in the suit. Suit is for money based on a promissory note. In the above suit, the plaintiff moved an application for amendment stating that the promissory note has been lost irrecoverably, so much so, he should be permitted to sue the defendants on a lost negotiable instrument. The amendment sought for by the plaintiff was opposed by the defendants filing written objections. The learned Sub Judge, after considering the amendment application in the light of the objections raised by the defendants with reference to the facts involved in the case, arrived at the conclusion that the proposed amendment is not entertainable. Consequently, the application for amendment moved by the plaintiff was dismissed. Ext.P4 is copy of that order. Impeaching the propriety and correctness of that order, petitioner/plaintiff has filed this Writ Petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel on both sides. Learned counsel W.P.C.No.28051/08 - 2 - for the petitioner contended that the amendment was necessitated since the promissory note kept in the custody of the counsel was lost from his hands and an affidavit to that effect has already been filed before this court in the Writ Petition. It was under the above circumstances, according to the counsel, the plaintiff moved the application for amendment of the plaint to claim a relief on the basis of the lost negotiable instrument. Learned counsel also relied on a decision of the High Court of Madras in Nagamma v. Venkata Reddi (AIR 1920 Madras 336) to contend a suit can include different causes of action in the alternative, and where one cause of action is not free from doubt, the suit can be amended to include a different cause of action in the alternative. Perusing Ext.P4 order impugned in the Writ Petition with reference to the materials produced and also taking note of the submissions made, I find there is no impropriety or illegality or irregularity in the order passed by the learned Sub Judge disallowing the amendment application. Order VII Rule 16 of the C.P.C. is an exception which permits suing on a lost negotiable instrument subject to the conditions stipulated thereunder. Normally, a plaintiff who sues on a cause of action has to produce the basic document on which the suit claim is based. But in the case of a lost negotiable instrument, an exception has been made under Order VII W.P.C.No.28051/08 - 3 - Rule 16 of the C.P.C. which reads thus: “Where the suit is founded upon a negotiable instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may pass such decree as it would have passed if the plaintiff had produced the instrument in Court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.” The essential condition to be satisfied in such a case is that the plaintiff who sues on a lost negotiable instrument must give an indemnity to the satisfaction of the court against the claim of any other person upon such instrument. Perusing Ext.P1 application filed by the plaintiff in the present case, I find, in the affidavit sworn to in support of the application moved, he has not undertaken to indemnify any person if a claim is made on the basis of a lost negotiable instrument, leave alone the satisfaction of the court for accepting that indemnity, if at all so furnished. In the application for amendment he would state that if the court requires he would furnish indemnity. That would not be sufficient to prove the bonafides of the plaintiff in moving the amendment sought for. Further more, it is noticed that the suit was instituted as early in 2000 and the proposed amendment W.P.C.No.28051/08 - 4 - to convert the suit as one on the basis of a lost negotiable instrument was filed nearly four years later. If such an amendment is allowed, a suit based on a lost negotiable instrument, the claim of the plaintiff on the date of filing of the amendment application was hopelessly barred by limitation. Then also it is noticed that on the very same cheque which is stated to have been lost the plaintiff had initiated proceedings against the defendants under Section 138 of the Negotiable Instruments Act which ended in his acquittal. It is the case of the plaintiff that an appeal challenging the order of acquittal is now pending. The records would also indicate that the defendants had a case that not only the cheque on which the present case was instituted but several other cheques in blank form with his signature had been obtained keeping him under duress and exerting undue influence, and on such allegations, after investigation, the police had chargesheeted the plaintiff and some others. That case, after trial, ended in the acquittal of the plaintiff and the co-accused. In the backdrop of those circumstances, the question has to be considered whether the plaintiff's application for amendment can be allowed, that too on an application moved after a lapse of four years after the institution of the suit. The learned Sub Judge has adverted to the above aspects in forming the conclusion that the amendment W.P.C.No.28051/08 - 5 - application is not entertainable. Learned counsel for the petitioner took exception to some of the observations in Ext.P3 order. But, in the given facts of the case, I find the learned Sub Judge was justified in making such observations while disposing the amendment application. I make it clear while disposing the suit the observations so made will not be taken into consideration as the suit has to be disposed on merits upon the evidence adduced by both sides. The decision relied by the learned counsel for the petitioner in Nagamma v. Venkata Reddi (AIR 1920 Madras 336) has no application to the facts of this case. The question considered therein was whether the plaintiff can include two different causes of action in the alternative in the same suit. That was a case where an alternative relief on original cause of action was sought in a suit based on promissory note. The decision has nothing to do with consideration of an amendment application for conversion of a suit filed on a negotiable instrument to one on a lost instrument. The Writ Petition is devoid of any merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE