IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 WP(C).No. 33032 of 2007(G) -------------------------- OS.109/2007 of MUNSIFF COURT, OTTAPPALAM .................... PETITIONER: ----------------- NARAYANA THARAKAN, AGED 73, S/O. ERANDAM VEETTIL RAMA THARAKAN, NHAALAMKUZHI DESOM, THIRUNARAYANAPURAM AMSOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT: --------------------- KUTTYKRISHNA THARAKAN, S/O. ERANDAM VEETTIL RAMA THARAKAN, NHAALAMKUZHI DESOM, THIRUNARAYANAPURAM AMSOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.33032/2007 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.109/2007 ON THE FILE OF THE MUNSIFF COURT, OTTAPPALAM DT.29.3.2007. EXT.P2: COPY OF THE I.A.N.O.979/2007 IN O.S.NO.109/2007 ON THE FILE OF THE MUNSIFF COURT, OTTAPPALAM DT.27.6.2007. EXT.P3: COPY OF THE ORDER IN I.A.NO.979/2007 IN O.S.NO.109/2007 ON THE FILE OF THE MUNSIFF COURT, OTTAPPALAM DT.18.10.2007. //TRUE COPY// PA TO JUDGE. M.N.KRISHNAN, J. --------------------------- W.P.(C) No.33032 OF 2007 -------------------------- Dated this the 15th day of February, 2008 J U D G M E N T ~~~~~~~~~~~ This writ petition is preferred against the order of the Munsiff, Ottappalam in I.A.No.979/2006 whereby the learned Munsiff dismissed the application for amendment. The suit was originally filed for injunction and the defendant remained ex parte. Thereafter on 27.6.2007 a prayer to amend the plaint is moved as follows: To declare the deed executed by the plaintiff in the year 1967 is null and void. The defendant entered appearance but later the counsel reported 'no instruction'. Cautiously the court below issued notice to the defendant. The averment in the amendment application is that the factum of execution of document in the year 1967 came to his knowledge only just before one week. The court below found that the attempt of the petitioner after setting aside the defendant ex parte to incorporate the new prayer by way of amendment is not made innocently and therefore dismissed the petition. 2. The fundamental rule and principle to be followed W.P.(C) No.33032/2007 2 under Order 6 Rule 17 while considering an amendment application is the bona fide of the party who files an application. After executing the document in the year 1967 and after instituting a suit for injunction suppressing the factum of the execution of the document in the year 1967 and when the defendant choses to remain ex parte suddenly wants to incorporate a prayer for set aside the document. By any stretch of imagination I am not prepared to believe that averment regarding his lack of knowledge of the document. Under the law of limitation the prayer has to be made within three years from the date of the execution of the document. So now the present attempt is to get the prayer incorporated and as the defendant has chosen to remain ex parte to get the document declared as void. The plaintiff does not have a case that he is not in possession of the property and his only prayer is for injunction and in that aspect also the defendant is remaining ex parte. The question that arises for determination in the injunction suit is only that of possession and the declaratory relief with respect to a document does not arise in such cases. So I have no hesitation to hold that seeing that the defendant remains ex parte the plaintiff wants to incorporate a larger relief and obtain a decree. W.P.(C) No.33032/2007 3 This petition lacks absolute bona fide and therefore I am not prepared to interfere with the decision rendered by the court below. Therefore, the writ petition is dismissed. (M.N.KRISHNAN, JUDGE) ps W.P.(C) No.33032/2007 4