IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16419 of 2009(O)
1. S.ANITHA,PARATHANAL HOUSE(LAKSHMI NIVAS)
... Petitioner
Vs
1. K.SANTHAMMAL,PARATHANAL HOUSE,
... Respondent
2. S.VENUGOPAL,
3. S.SUDAMINI,
4. S.GEETHA RANI,
5. S.SUBHASH,
6. S.SURESH,
7. S.SANTHOSH,
8. N.GOVINDA RAJAN,MANGALATH MADOM,
For Petitioner :SRI.S.SANAL KUMAR
For Respondent :SRI.SUNIL CYRIAC
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :10/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.16419 OF 2009
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Dated this the 10th day of August 2009
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JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) Call for the records relating to I.A
No. 1123/2008 in O.S No.85/1999 of the Sub Court,
Pala and set aside Ext.P6 order passed therein and
allow the application for amendment.
ii) Issue such other writ, order or
direction which this Hon’ble Court deems fit in the
nature and circumstances of the case.
W.P.(C).No.16419 OF 2009 Page numbers
2. Petitioner is the plaintiff in O.S
No.85/1999 on the file of the Sub Court, Pala.
Suit is one for partition after treating a
partition deed and also a sale deed as null and
void. When the suit came up in the list for trial,
petitioner moved an application for carrying out
some corrections in the plaint and also another
petition for removal of the case from the list.
Both petitions were dismissed. An application for
restoration of the suit moved before the trial
court not being entertained the petitioner,
preferred an appeal. In the appeal the order
dismissing the suit for default was set aside
directing its restoration. Pursuant to the
restoration of the suit, petitioner moved another
application for amendment of the plaint which was
canvassed earlier before dismissal of the suit for
default. That application being objected to by the
defendants, the learned Munsiff after hearing both
W.P.(C).No.16419 OF 2009 Page numbers
sides passed Ext.P6 order disallowing that
petition. The amendment petition was disallowed
for the reason that the decision in the earlier
petition before the dismissal of the suit for
default would constitute resjudicate barring the
entertainabiltiy of the petition filed for that
relief after restoration of the suit. Propriety
and correctness of that decision is challenged in
the writ petition invoking the supervisory
jurisdiction vested with this court under Article
227 of the Constitution of India.
3. I heard the learned counsel on both
sides. Reiterating the objections raised before
the court below which was found appealing to the
court below the learned counsel for the respondents
submitted that Ext.P6 order does not call for any
interference. On the other hand learned counsel
for the petitioner submitted that a fresh
W.P.(C).No.16419 OF 2009 Page numbers
application was filed in view of the fact that the
earlier application was dismissed. Challenge
against the dismissal of the earlier application
could not be pursued due to the dismissal of the
suit for default. After having heard the counsel
on both sides and taking note of the facts and
circumstances presented, I find, technical
objections should not debar a party from claiming
reliefs which are otherwise entertainable before a
court of law. After all, courts as
instrumentalities of justice, should not bar the
relief on technical objections. Procedure is
after all handmaid of justice and it has to bend
and mould depending upon the facts and
circumstances involved in the case. True, there
was some delay on the part of the petitioner /
plaintiff in applying for the amendment. But after
going through the amendment application, I find
what is sought for is only correction in the date
W.P.(C).No.16419 OF 2009 Page numbers
and number of the deeds which probably might have
occurred while drafting the plaint. Having regard
to the totality of the facts and circumstances
presented, I find disallowing of the amendment
application in view of the dismissal of the
previous application may work out injustice. The
petitioner / plaintiff could have moved a review
petition for annulling the order passed in the
previous petition on restoration of the suit. But
for the reason that petitioner has filed a fresh
petition without filing a review it cannot be taken
as a circumstance to hold that the relief claimed
is barred by resjudicate without appreciating and
examining the circumstances surrounding in the
filing of the fresh petition. So much so, I find
Ext.P6 order passed by the court below is liable to
be set aside, and I do so. The injury that is
likely to be suffered by the respondents in
permitting an amendment filed belatedly has also to
W.P.(C).No.16419 OF 2009 Page numbers
be taken into consideration. The amendment sought
for by the plaintiff can be granted only on terms.
As a condition precedent in allowing the petition
for amendment petitioner shall pay a sum of
Rs.500/- to the counsel appearing for the
respondents before this court within a week, and
file a memo evidencing such payment. If cost is
not paid within the time limit stipulated, the
amendment petition shall stand dismissed without
any further orders. Subject to the above
directions, the writ petition is disposed.
Post after two weeks for report.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv