IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 32868 of 2007(K)
1. MAJITHA BEEVI, D/O.LATE ASUMA BEEVI,
... Petitioner
2. SANOOJA BEEVI, D/O.LATE ASUMA BEEVI,
Vs
1. ABDUL VAHAB, S/O.LATE ABDUL RAHUMAN,
... Respondent
2. AMJATH (MINOR), AGED 15, S/O.ABDUL
3. SADDAM (MINOR), AGED 13,
For Petitioner : B.SATHIQ
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :06/11/2007
O R D E R
M.N.KRISHNAN, J.
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W.P.(C). NO. 32868 OF 2007
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Dated this the 6th day of November, 2007
J U D G M E N T
This writ petition is filed against the order in I.A. 7850/07 in
O.S. 1545/05. The said application was one for amendment of the
plaint. The prayer incorporated in the suit was for a mandatory
injunction. After the evidence was closed and arguments were
heard, the respondents moved an application for amendment to add
a prayer for recovery of possession of the property.
2. The main grievance of the petitioners are that they were
not given any opportunity to file counter in the application and the
court allowed the amendment application against the provisions of
Order VI Rule 17 of the Civil Procedure Code. Under Order VI Rule
17 after the amendment in 2002, one is precluded from filing the
amendment after the trial has commenced. But there are exceptional
circumstances where amendment can be allowed, thereafter for
which reasons have to be recorded.
3. I do not find any such application of mind by the court in
this order and the court simply allowed the amendment application
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stating that it will not change the character of the suit. Since the
court has not given an opportunity to the writ petitioners to file their
counter and as I find there is absence of total application of mind by
the court to the relevant provisions of the CPC, I set aside the order
passed by the court and remit back the application for fresh
consideration of the court below. The writ petitioners are permitted to
file their counter and the court after applying its mind to the relevant
provisions of Order VI Rule 17 and on hearing the plaintiffs as well,
dispose of the matter in accordance with law. Since I am disposing
of the matter at the admission stage itself, the court shall give a
notice to the plaintiffs and also fix a hearing date and then dispose of
the matter in accordance with law.
The writ petition is disposed of as above.
M.N.KRISHNAN, JUDGE
vps
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