IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9020 of 2008(W)
1. SREE GANESH CHITTS & BANKERS,
... Petitioner
Vs
1. M/S. LIGHT POINT,SAVITHRI BUILDINGS
... Respondent
2. MRS MAHIJA PRAMOD, W/O. PRAMOD KUMAR
3. P.A.PRAMOD KUMAR, S/O.BHASKARAN,
For Petitioner :SRI.K.V.SOHAN
For Respondent :SRI.K.PRAVEEN KUMAR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/07/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.9020 of 2008
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Dated this the 9th July, 2008.
J U D G M E N T
Plaintiff in O.S.No.191 of 2005, on the file of Sub
Court, Kozhikode, is the petitioner. Defendants are respondents. The
suit is for realisation of the amount due from the defendants under two
promissory notes. In the written statement, defendants admitted
receipt of the amount, but contended that suit is barred by limitation.
Petitioner filed Ext.P3 petition for permission to amend the plaint. The
amendment sought for is to introduce a plea that when the suit was to
be instituted, defendants 2 and 3 were out of India, and therefore, suit
cannot be instituted within the period of limitation. Under Ext.P4
order, learned Sub Judge dismissed the application holding that if the
petition is allowed, it would take away the defence available to the
defendants, and, would prejudice them, and hence cannot be allowed.
This petition is filed under Article 227 of the Constitution of India
challenging Ext.P4 order.
W.P.(C) No.9020/2008
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2. The learned counsel appearing for the petitioner was
heard. Notice served to respondents were not served and petitioner
was directed to serve notice on the counsel appearing for respondents
before the trial court. Petitioner produced a receipt showing service of
notice on the counsel appearing for respondents before the trial court.
Hence service is recorded sufficient.
3. The learned counsel appearing for the petitioner
argued that in the plaint itself, fact that defendants 2 and 3 were not
in India was pleaded and by the proposed amendment, that fact is
further clarified and in such circumstances, learned Sub Judge was not
justified in rejecting the application. It was also pointed out that by
amendment, plaintiff is entitled to introduce a plea which is even
barred by limitation, and question whether suit is barred or not is
ultimately to be decided in the suit and on the ground that plea is
barred, amendment petition cannot be rejected. There is force in the
submission.
Even if the plea sought to be introduced by the
amendment to the plaint is barred by limitation, the amendment
sought for cannot be rejected on that ground. Instead the question
W.P.(C) No.9020/2008
3
whether the plea is barred or not is to be decided in the suit, as the
defendants are entitled to raise the plea of bar of limitation by filing
additional written statement. By the amendment, petitioner has only
sought to introduce a plea, which even otherwise was there in the
plaint that defendants 2 and 3 were not in India at the time when the
suit was to be instituted. No serious prejudice will be caused if the
amendment is allowed. In such circumstances, Ext.P4 order is
quashed. Ext.P3 petition (I.A.No.424/2008) stands allowed.
Respondents-defendants are entitled to file additional written
statements raising all available plea, including the one of bar of
limitation.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.