IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 WP(C).No. 16419 of 2009(O) -------------------------- OS.85/1999 of SUB COURT, PALA .................... PETITIONER(S): ------------------------ S.ANITHA,PARATHANAL HOUSE(LAKSHMI NIVAS) THEKKUMMURI,PULIYANNOOR,MEENACHIL, NOW RESIDING AT ARUNA NIVAS,GURUPURAM, ARYAD NORTH,KOMALAPURAM,AMBALAPPUZHA,ALAPPUZHA. BY ADV. MR.S.SANAL KUMAR RESPONDENT(S): ---------------------------- 1. K.SANTHAMMAL,PARATHANAL HOUSE, (LAKSHMI NIVAS),THEKKUMMURI,PULIYANNOOR, MEENACHIL,PALA,KOTTAYAM. 2. S.VENUGOPAL, PARATHANAL HOUSE(LAKSHMI NIVAS),THEKKUMMURI, PULIYANNOOR,MEENACHIL,PALA,KOTTAYAM. 3. S.SUDAMINI, PARATHANAL HOUSE (LAKSHMI NIVAS),THEKKUMMURI, PULIYANNOOR,MEENACHIL,PALA,KOTTAYAM. 4. S.GEETHA RANI, PARATHANAL HOUSE (LAKSHMI NIVAS),THEKKUMMURI, PULIYANNOOR,MEENACHIL,PALA,KOTTAYAM. 5. S.SUBHASH, PARATHANAL HOUSE(LAKSHMI NIVAS),THEKKUMMURI, PULIYANNOOR,MEENACHIL,PALA,KOTTAYAM. 6. S.SURESH, PARATHANAL HOUSE (LAKSHMI NIVAS),THEKKUMMURI, PULIYANNOOR,MEENACHIL,PALA,KOTTAYAM. 7. S.SANTHOSH, PARATHANAL HOUSE (LAKSHMI NIVAS),THEKKUMMURI, PULIYANNOOR,MEENACHIL,PALA,KOTTAYAM. 8. N.GOVINDA RAJAN,MANGALATH MADOM, VAZHAPPALLY KARA,VETTUVENI,HARIPPAD. R1 TO R3 AND R5 TO R8 BY ADV. MR.SUNIL CYRIAC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16419/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.85/1999. P2: COPY OF THE ORDER OF THE SUB JUDGE, PALA IN I.A.NO.367/05. P3: COPY OF THE ORDER DISMISSING THE PETITION FOR REMOVAL FROM LIST. P4: COPY OF THE APPLICATION FOR AMENDMENT AS I.A.1123/08. P5: COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.1123/08. P6: COPY OF THE ORDER I.A.NO.1123/2008 IN O.S.85/1999. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.16419 OF 2009 -------------------------- Dated this the 10th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records relating to I.A No. 1123/2008 in O.S No.85/1999 of the Sub Court, Pala and set aside Ext.P6 order passed therein and allow the application for amendment. ii) Issue such other writ, order or direction which this Hon'ble Court deems fit in the nature and circumstances of the case. W.P.(C).No.16419 OF 2009 Page numbers 2. Petitioner is the plaintiff in O.S No.85/1999 on the file of the Sub Court, Pala. Suit is one for partition after treating a partition deed and also a sale deed as null and void. When the suit came up in the list for trial, petitioner moved an application for carrying out some corrections in the plaint and also another petition for removal of the case from the list. Both petitions were dismissed. An application for restoration of the suit moved before the trial court not being entertained the petitioner, preferred an appeal. In the appeal the order dismissing the suit for default was set aside directing its restoration. Pursuant to the restoration of the suit, petitioner moved another application for amendment of the plaint which was canvassed earlier before dismissal of the suit for default. That application being objected to by the defendants, the learned Munsiff after hearing both W.P.(C).No.16419 OF 2009 Page numbers sides passed Ext.P6 order disallowing that petition. The amendment petition was disallowed for the reason that the decision in the earlier petition before the dismissal of the suit for default would constitute resjudicate barring the entertainabiltiy of the petition filed for that relief after restoration of the suit. Propriety and correctness of that decision is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. Reiterating the objections raised before the court below which was found appealing to the court below the learned counsel for the respondents submitted that Ext.P6 order does not call for any interference. On the other hand learned counsel for the petitioner submitted that a fresh W.P.(C).No.16419 OF 2009 Page numbers application was filed in view of the fact that the earlier application was dismissed. Challenge against the dismissal of the earlier application could not be pursued due to the dismissal of the suit for default. After having heard the counsel on both sides and taking note of the facts and circumstances presented, I find, technical objections should not debar a party from claiming reliefs which are otherwise entertainable before a court of law. After all, courts as instrumentalities of justice, should not bar the relief on technical objections. Procedure is after all handmaid of justice and it has to bend and mould depending upon the facts and circumstances involved in the case. True, there was some delay on the part of the petitioner / plaintiff in applying for the amendment. But after going through the amendment application, I find what is sought for is only correction in the date W.P.(C).No.16419 OF 2009 Page numbers and number of the deeds which probably might have occurred while drafting the plaint. Having regard to the totality of the facts and circumstances presented, I find disallowing of the amendment application in view of the dismissal of the previous application may work out injustice. The petitioner / plaintiff could have moved a review petition for annulling the order passed in the previous petition on restoration of the suit. But for the reason that petitioner has filed a fresh petition without filing a review it cannot be taken as a circumstance to hold that the relief claimed is barred by resjudicate without appreciating and examining the circumstances surrounding in the filing of the fresh petition. So much so, I find Ext.P6 order passed by the court below is liable to be set aside, and I do so. The injury that is likely to be suffered by the respondents in permitting an amendment filed belatedly has also to W.P.(C).No.16419 OF 2009 Page numbers be taken into consideration. The amendment sought for by the plaintiff can be granted only on terms. As a condition precedent in allowing the petition for amendment petitioner shall pay a sum of Rs.500/- to the counsel appearing for the respondents before this court within a week, and file a memo evidencing such payment. If cost is not paid within the time limit stipulated, the amendment petition shall stand dismissed without any further orders. Subject to the above directions, the writ petition is disposed. Post after two weeks for report. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv