IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17663 of 2009(O)
1. K.BHASKARAN, S/O.KRISHNAN, AGED 59 YEARS
... Petitioner
Vs
1. O.C.SARADHA, W/O.P.C.KORAN, AGED 86
... Respondent
2. P.C.SUDHEENDRAN, S/O.KORAN, AGED 56
3. P.C.SUDHEER, S/O.KORAN, AGED 48 YEARS,
4. P.C.SUMITHRAN, S/O.KORAN, AGED 41 YEARS,
5. P.C.SURESH, S/O.KORAN, AGED 45 YEARS,
For Petitioner :SRI.R.SURENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :25/06/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.17663 OF 2009 (O)
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Dated this the 25th day of June, 2009
J U D G M E N T
The writ petition is filed by the 1st defendant in
O.S.No.86/1995 on the file of the Additional Munsiff’s Court,
Kannur. Suit was one for declaration of title and mandatory
injunction, which was instituted by the respondents 1 to 4 in
this petition as plaintiffs. The 5th respondent in the petition
was the 2nd defendant in the suit. The trial court decreed the
suit in favour of the plaintiffs, against which, the petitioner/
1st defendant preferred an appeal. The appeal numbered as
A.S.No.70/2004, it is stated, after being admitted and taken on
file is pending for hearing. Petitioner moved an application
under Order VI Rule 17 of CPC for amending his written
statement in the appeal. The learned Sub Judge, after hearing
that application dismissed it under Ext.P4 order. Correctness
and propriety of that oder is impeached by filing this writ
petition invoking the supervisory jurisdiction vested with this
WPC.17663/09 2
Court under Article 227 of the Constitution of India.
2. Having regard to the submissions made by the
counsel and taking note of the facts and circumstances
involved with reference to Ext.P4 order impugned in the
petition, I find notice to the respondents is not necessary and
it is dispensed with. The learned Sub Judge, it is seen, has
dismissed the application for amendment of the written
statement moved by the petitioner/appellant holding that the
records have not been called for in the appeal, and, further,
sufficient grounds have not been made out for allowing the
amendment application which has been moved at a belated
stage. The course adopted by the learned Sub Judge for
considering the amendment application without even awaiting
for the records of the lower court, which have to be called for
in an appeal as it is rehearing of a suit, is not at all proper.
Further more, when an amendment of the pleading is sought
for by any of the parties in an appeal, it is proper and
advisable to consider that petition at the stage of hearing the
appeal. If the amendment is to be allowed, naturally, the
WPC.17663/09 3
opposite party should be granted permission to submit his
reply thereto, which very often may require setting aside the
impugned judgment and remitting the case to the court below
for fresh disposal. Sometimes, the amendment may be of
innocuous nature and the appellate court, without remission,
can pass appropriate orders and enter a final decision after
giving opportunity to the other sides to meet that amendment.
Whatever that be, it is always advisable to hear an amendment
application moved at the time of hearing of the appeal so that
the whole gamut of issues involved will be presented before
the court to decide whether such amendment is required to be
allowed or not. Ext.P4 order is set aside with direction to the
learned Sub Judge to consider and dispose it along with the
appeal. Writ petition is disposed with the above observations.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO. OF 2006 ()
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O R D E R
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23rd March, 2009