IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 WP(C).No. 19856 of 2008(L) ---------------------------------------- (O.S.NO.157/1993 OF THE SUB COURT, OTTAPALAM) PETITIONER: --------------------- P.A.ABU, AGED 70, S/O. PATHYATHINGAL ALI, VENGASSERI AMSOM DESOM, OTTAPALAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT. PREETHY KARUNAKARAN SMT. DEEPA SRI.RAVI K.(PARIYARATH) RESPONDENT: ----------------------- HAMSA @ MANU, S/O.PARAKADAN HASSAN, CHERUPULASSERY AMSOM, CHERPULASSERY PO., OTTAPALAM TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 19856 OF 2008 =========================== Dated this the 3rd day of July, 2008 JUDGMENT Petitioner is the plaintiff in O.S.157/1993 on the file of Sub Court, Ottapalam. Suit is for realisation of the amount due. Suit was originally dismissed by learned Munsiff finding that there was material alteration in the promissory note. The material alteration was correction of the date in the promissory note. The original date was 29.6.1993 which was corrected as 22.2.1993. Petitioner challenged the judgment before this court in A.S.130/1996. Respondent had also filed a Cross Objection. Under Ext.P2 judgment this court found that respondent has no case that he has executed the promissory note. It was also found that in the nature of the contentions raised an opportunity is to be granted to the parties to adduce further evidence. The suit was therefore remanded. Petitioner thereafter filed W.P.(C)19856/2008 2 I.A.893/2008, an application under Rule 17 of Order VI of Code of Civil Procedure for leave to amend the plaint. The amendment sought for is to introduce a plea that while writing the promissory note respondent had committed a mistake in showing the correct date and when it was pointed out by the petitioner respondent of his consent corrected the same in the promissory note. Petition was opposed by respondent. Under Ext.P4 order the petition was dismissed. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner was heard. 3. The argument of learned counsel is that under Ext.P2, this court remanded the suit and it is an open remand enabling parties to adduce evidence and therefore trial court was not justified in dismissing the application for the reason that this court did not permit petitioner to amend the plaint. True, in Ext.P2 judgment this court did not mention anything about the amendment of the plaint. Evidently such a request was not made when the appeal was heard or disposed. The W.P.(C)19856/2008 3 crucial question is whether petitioner is to be permitted to amend the plaint so as to make the plaint in consonance with the evidence. Petitioner has no case when he was examined earlier, that respondent has committed a mistake in showing the date of execution of the promissory note and on his request respondent corrected the date. So also when respondent was examined, there was no case that petitioner pointed out the mistake on that day and it was corrected. In such circumstance, petitioner cannot be permitted to amend the plaint as sought for. Moreover, what is sought to be introduced by the amendment is a matter for evidence. As there is no illegality or irregularity in Ext.P4 order, Writ Petition is dismissed. Petitioner is entitled to challenge the order along with the final judgment, if it goes against him. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006