IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 WP(C).No. 3908 of 2009(M) ------------------------- AGAINST THE ORDER IN I.A 9186/2008 IN OS.1121/2005 of PRL.SUB COURT,THRISSUR .................... REVISION PETITIONER(S): --------------- RAJU JOHN.M., S/O. MANJALI VEETTIL JOHN, UNITY ROAD, KURIACHIRA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.C.SASIDHARAN SRI.G.GIREESH KUMAR RESPONDENT(S): --------------- JOY, S/O. KIDANGATH CHAKKALAKKAL VEETTIL JOSEPH, RESIDING AT CHIYYARAM,KARIMBATTATHOPU DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK. ADV. SRI.N.SUBRAMANIAM FOR R1 SRI.M.S.NARAYANAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 3908/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT. EXT.P2: COPY OF WRITTEN STATEMENT FILED BY THE RESPONDENT. EXT.P3: COPY OF IA NO.9186/2008. EXT.P4:COPY OF ORDER IN IA NO.9186/2008 DATED 3.1.2009. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.3908 of 2009 --------------------------------------------- Dated this the 18th day of March, 2009 JUDGMENT The plaintiff in O.S.No.1121 of 2005, on the file of the court of the Subordinate Judge of Thrissur, whose application for amendment of plaint was dismissed by the trial court, has challenged that order dated 3rd January 2008 in I.A.No.9186 of 2008 in this Writ Petition. The suit was filed by the petitioner for cancellation of a sale deed executed by him in favour of the defendant. By the amendment sought to be made, the plaintiff sought to introduce two alternative prayers. The court below dismissed the application on the ground that the application cannot be allowed in view of the proviso to Rule 17 of Order VI of the Code of Civil Procedure. It was held that in view of the averments in the written statement, if the petitioner was diligent, he could have filed the application for amendment earlier. 2. The learned counsel for the petitioner submitted that the order passed by the court below cannot be sustained in view WPC No.3908/2009 2 of the decision of the Supreme Court in State Bank of Hyderabad Town Municipal Council (2007(1) SCC 765). The Supreme Court held that the proviso to Rule 17 of Order VI of the Code will not apply to the pleadings filed before the commencement of the C.P.C. Amendment Act, 2002. In the light of the decision of the Supreme Court, the order passed by the court below is liable to be set aside. 3. The learned counsel for the respondent submitted that even without recourse to the proviso to Rule 17 of Order VI, the conclusion arrived at by the court below can be sustained. He submitted that the recording of evidence commenced in November 2008. PW1 was examined in court on 13.11.2008 and 15.11.2008. PW2 was examined on 17.11.2008 and PW3 was examined on 6.12.2008. The application for amendment was filed only on 10.12.2008. The counsel also submitted that in the written statement itself, it was pointed out that going by the averments in the plaint the suit ought to have been for recovery of money and there is no prayer for recovery of money. Even after such a contention was raised in the written statement, the plaintiff has not taken any steps for all these years to amend the plaint. Amendment of plaint after the evidence is almost over WPC No.3908/2009 3 would cause great prejudice to the defendant. It is also contended that the alternative prayer is barred by limitation and that the amendment if allowed, it would alter the nature and character of the suit. Since these contentions are not dealt with by the court below in the order impugned, I do not think it is proper to decide those questions in this Writ Petition. It is only just and reasonable to relegate consideration of the same by the trial court. 4. For the aforesaid reasons, the order dated 3rd January 2008 in I.A.No.9186 of 2008 in O.S.No.1121 of 2005 is set aside. The trial court shall consider the application afresh after considering the contentions put forward by the plaintiff as well as the defendant. The order is being set aside only on the ground that the proviso to Rule 17 of Order VI does not apply and since the court below has relied on the same to arrive at the conclusion. All the questions are left open to be considered by the trial court. The Writ Petition is disposed of accordingly. K.T.SANKARAN, JUDGE csl