IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 28426 of 2008(H) ------------------------------------ AGAINST THE ORDER DATED 8-8-2008 IN IA 654/2008. IN OS.536/2004 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: ------------------ VIMAL CHANDRAN, S/O.SATHYANANDAN ANIL BHAVAN, THEKKUM BHAGOM THIRUVANANTHAPURAM. BY ADV. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN RESPONDENTS: ---------------------- 1. FAROOQ, S/O.SUBAIR PUTHUVAL VEEDU, POUNDU KADAVU, VALIYAVLI P.O.,THIRUVANANTHAPURAM 2. SUBAIR, PUTHUVAL VEEDU, POUNDU KADAVU, VALIYAVLI P.O.,THIRUVANANTHAPURAM 3. FIRDONSE, S/O. SUBBAIR PUTHUVAL VEEDU, POUNDU KADAVU, PULIMUTTAM, ATTIPRA VILLAGE, THIRUVANANTHAPURAM. R2 BY ADV. SRI.G.SUDHEER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28426/2008-H APPENDIX PETITIONER'S EXHIBITS : EXT.P1 COPY OF THE PLAINT IN OS.536/04 FILED BY THE PETITIONER. EXT.P2 COPY OF THE ATTACHMENT PETITION FILED ALONG WITH THE PLAINT. EXT.P3 COPY OF THE COUNTER-AFFIDAVIT TO ATTACHMENT PETITION FILED BY DEFENDANTS 1 AND 2. EXT.P4 COPY OF THE AMENDMENT PETITION IA NO.654/08 FILED BY PETITIONER. EXT.P5 COPY OF THE COUNTER-AFFIDAVIT TO THE AMENDMENT PETITION FILED BY RESPONDENTS. EXT.P6 COPY OF THE ORDER DATED 8-8-2008. RESPONDENTS' EXHIBITS : NIL / TRUE COPY / PA TO JUDGE. S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 28426 OF 2008 H ```````````````````````````````````````````````````` Dated this the 2nd day of July, 2009 J U D G M E N T Petitioner is the plaintiff in OS.No.536/04 on the file of the Sub Court, Thiruvananthapuram. Suit is one for recovery of money, and the 1st and 2nd respondents are the defendants. The 3rd respondent was sought to be impleaded as additional defendant by the plaintiff by moving an amendment application in which other amendments to the plaint were also sought for. The proposed impleadment of additional 3rd defendant, the present 3rd respondent, and the amendment of the plaint canvassed by the plaintiff was objected to by the contesting defendants, 1st and 2nd respondents by filing written objections. After hearing the counsel on both sides, appreciating the facts and circumstances involved with reference to the pleadings and materials, learned Sub Judge found no merit in the application for amendment of the plaint, but, the impleadment sought for of an additional party as 3rd defendant in the suit was allowed. Ext.P6 is the copy of that order. Propriety and correctness of Ext.P6 order to the extent the court below WPC.28426/08 : 2 : disallowed the amendment application is challenged by the plaintiff/petitioner invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. Learned counsel for the petitioner submitted that the amendment sought for, at the most, constituted furnishing of some more details of the transaction stated in the plaint in respect of the suit claim which was based on a dishonoured cheque given by the 2nd defendant. There was no change of character of the suit, but, only of furnishing of better details which was found essential to enable the plaintiff to seek the relief claimed in the suit. After having heard the counsel at length and considering the facts and circumstances presented with reference to the materials tendered with the writ petition and perusing Ext.P6 order, I find the amendment proposed is not so simple as canvassed by the learned counsel for the petitioner/plaintiff. By the amendment, an entirely new case was sought to be advanced by the plaintiff seeking additional relief of declaration also. Suit as presented was only for recovery of money based on a dishonoured cheque. By the amendment, the WPC.28426/08 : 3 : plaintiff wanted to bring in a new case that the suit claim based on the cheque was on account of defrauding and misappropriation committed by the wife of the 1st defendant employed in the financial concern operated by the plaintiff. Whatever be the merits of the case so advanced by the plaintiff, it is evident from the nature of the proposed amendment sought for, as seen from Ext.P4, copy of the application for amendment, the allegations raised thereunder imputing misappropriation against a third party, an employee of the plaintiff, constituted a different cause of action unconnected with the cause of action on which the Suit was earlier instituted. It cannot also be stated that by seeking the declaration in addition to the relief already claimed there was no change of character of the suit. I do not want to make any comments with respect to Ext.P6 order by which impleadment of an additional party in the suit was allowed even while holding that the basis for such impleadment by way of amendment was found not entertainable. So far as the disallowing of the amendment of the plaint is concerned, I do not find any impropriety, irregularity or illegality of the order passed by the learned Sub Judge. I make it WPC.28426/08 : 4 : clear to sustain the suit claim for recovery of money, it is open to the plaintiff to lead evidence with respect to the transaction under which the cheque, subsequently dishonoured, is alleged to have been handed over by the 1st respondent. The dismissal of the amendment application will not be a bar to the plaintiff to lead evidence on the transaction. Subject to the above observations, the writ petition is closed. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge