IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 WP(C).No. 23777 of 2010(O) -------------------------- AGAINST THE ORDER IN IA 403/10 IN OS.30/2008 of SUB COURT, VADAKARA .................... PETITIONER(S): --------------- KUZHICHALIL KAMALA, D/O.GOVINDAN, MUTTUNGAL AMSOM, RAYARANGOTH DESOM, VATAKARA TALUK. BY ADV. SRI.PULIKKOOL ABUBACKER SRI.ZUBAIR PULIKKOOL RESPONDENT(S): --------------- 1. NELLOLIKANDIYIL KUNHAMMED HAJI, BY POWER OF ATTORNEY HOLDER RAMEES, S/O.HAMSA, RESIDING AT CHAKKARAKKANDY HOUSE, VELLUR AMSOM, CHALAPPURAM DESOM, VADAKARA 673 101. 2. KALLIKKANDY MOIDU HAJI, S/O.CHEKKAN, VALAYAM AMSOM, CHERUMOTH DESOM, VATAKARA TALUK, PIN 673 101. 3. PALOL MUHAMMAD, RESIDING AT KALLIKKANDY HOUSE, VALAYAM AMSOM, CHERUMOTH DESOM, VATAKARA TALUK, PIN 673 101. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.23777 of 2010 -------------------------------------- Dated this the 29th day of July, 2010. JUDGMENT This petition is filed by defendant No.1 in O.S.No.30 of 2008 of the court of learned Sub Judge, Vadakara, a suit filed by respondent No.1 for recovery of Rupees three lakhs allegedly paid to the petitioner by way of advance in connection with an agreement for sale dated 06.05.2005. Petitioner in Ext.P3, written statement dated 30.07.2008 while denying claim of respondent No.1 claimed that she has suffered damages on account of breach committed by respondent No.1 and is entitled to adjust such loss in the advance received by her from respondent No.1. Both parties went into trial and evidence was recorded. At a time when the case was to be disposed of, petitioner filed Ext.P2, application dated 24.03.2010 for amendment of written statement to incorporate a specific plea that on account of breach of contract on the part of respondent No.1, she suffered heavy damages but, is confining her claim to Rupees three lakhs to be adjusted in the amount allegedly payable to respondent No.1. Respondent No.1 opposed the application. Learned Sub Judge vide Ext.P4, order has dismissed the said application stating that claim of adjustment is made after the period of limitation. Learned counsel contends that adjustment arises even before institution of the suit and hence no question of limitation is involved. Alternatively it is contended that limitation if any can start only from the date of breach of contract on the part of respondent No.1. WP(C) No.23777/2010 2 2. I am not going into the correctness of the order passed by the learned Sub Judge or the contention raised by learned counsel regarding limitation on the plea of adjustment. It is seen that Ext.P3, written statement was filed as early as on 30.07.2008 and it is after the parties went into trial and adduced evidence and almost at a time when what remained was only pronouncement of judgment that petitioner has chosen to file Ext.P2, application. Even as per submission of learned counsel case stood posted on 07.04.2010 for pronouncing judgment. In such a situation I do not consider it necessary to interfere with the order under challenge. But I make it clear that if ultimately the decision of learned Sub Judge in the suit goes against petitioner she can challenge the correctness of Ext.P4, order in the appeal that she may prefer. Without prejudice to the said right of petitioner, this Writ Petition is closed. THOMAS P.JOSEPH, Judge. cks