IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 3648 of 2009(H) ------------------------------------- OS.NO.123/2007 OF SUB COURT, MUVATTUPUZHA. .................... PETITIONER: ------------------- SOMAN, AGED 56 YEARS, S/O.CHACKO, KOTTANKUZHYKARUKAYIL, KATTODU KARA, KUTTAPUZHA VILLAGE, THIRUVALLA. BY ADVS. MR.P.FAZIL, MR.A.C.THOMAS ADHIKARAM, MR.SREEJITH V.S, SMT.ANALAKHUSI BHASKAR. RESPONDENT: --------------------- THOMAS, AGED ABOUT 54 YEARS, S/O.KURIAN, NEDIYAMALA ALIAS PULIKKIYIL, MARANGOLI KARA, NJEEZHOOR VILLAGE, VAIKKAM TALUK, NOW RESIDING AT NEDIYAMALA ALIAS PULIKKIYIL, KEETTILA KARA, ARAKKULAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. BY ADV. MR.MARTIN G.THOTTAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.3648 OF 2009 -------------------------- Dated this the 14th day of July 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records in O.S No.123 of 2007 in the file of the Sub Judge, Muvattupuzha and set aside Ext.P6 order dated 17/01/2009 and dismiss Ext.P4 amendment application filed by the respondent/plaintiff. ii) Such other appropriate writ, order or directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. iii) Direct the respondent to pay the cost of the proceedings to the petitioner. W.P.(C).No.3648 OF 2009 2 2. Defendant in O.S 123/07 on the file of the Sub Court, Moovattupuzha is the petitioner and the respondent , the plaintiff in the suit. Suit is one for specific performance on an agreement of sale. After the written statement was filed by the petitioner/defendant the plaintiff moved an application for amending the plaint to delete a word from paragraph (1) of his plaint. Before the amendment sought for, the averment made spelt out that the plaintiff had to purchase the property covered by the agreement of sale at the rate of Rs.40,000/- per cent after the area is 'determined on measurement' (ta¸Sn hkvXp Afóp ImWpó sks³dmón\v \mð¸Xn\mbncw cq] \nc¡nð hne \nivNbn¨v) by the proposed amendment determination of the property by measurement (Afóp ImWpó) was sought to be deleted. The defendant objected to the amendment contending that it takes away an admission made and thereby cause prejudice to him. The learned Sub Judge after hearing both sides allowed the W.P.(C).No.3648 OF 2009 3 amendment sought for by the plaintiff. Ext.P6 is the copy of that order, Impeaching the propriety and correctness of Ext.P6 order, petitioner/defendant has filed this writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The learned counsel for the petitioner inviting my attention to 'Heeralal v Kalyan Mal'(1998 SCC 618) and 'Goutham Sarup v Leela Jetly' (2008(3) KLT 817 (SC)) contended that a party to the proceeding cannot be permitted to resile a categorical admission made in the pleadings, but, he can be given opportunity to explain and clarify that admission. The learned counsel appearing for the respondent/plaintiff however contended that the proposed amendment was sought for since no such term forms part of Ext.P2 agreement of sale. In seeking enforcement of the contract under Ext.P2 W.P.(C).No.3648 OF 2009 4 agreement of sale, it is submitted, none of the parties has any right to add or subtract any term from the agreement. The contract has to be enforced as per the terms stipulated in the agreement. When the plaintiff makes averments varying the terms of the agreement, it may affect the bonafides of his claim. Further it is submitted that the word used on 'determination by measurement' (Afóp) was apparently a mistake and not an admission. So the question emerges for consideration is whether each and every word used by the plaintiff in his plaint or by the defendant in his written statement would amount to an admission. If that be so, a party making such admission cannot be permitted to resile from such admission. Perusing the allegations made in the plaint, I find the word used 'Afóp ' is only a descriptive statement and not an admission on the part of the plaintiff. Further more the suit is one for specific performance and as contended by the learned counsel for the plaintiff the W.P.(C).No.3648 OF 2009 5 enforceability of the contract as specified under the agreement alone is possible. In the context it is also to be noted that the purport and object of Order 6 Rule 17 of the Code of Civil Procedure is to permit any of the parties to rectify the mistakes which have crept in the pleadings by inadvertence so as to have a proper adjudication of the controversy in the suit or proceeding. The decisions relied on by the learned counsel for the petitioner/defendant have no application to the case. There is no impropriety and illegality in Ext.P6 order passed by the court below allowing the amendment moved by the plaintiff. The writ petition is disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv