IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 25950 of 2004(L)
1. AHAMMAD MAQSOOD,
... Petitioner
Vs
1. T.ABDUL HAMEED @ HAMEED THERUVATH,
... Respondent
2. MRS. B.M.HALEEMA,
3. M.A.MOIDU, S/O. ABDULLA,
4. SMT.P.H.WAHEEDA RAHIMAN,
For Petitioner :SRI.MVS.NAMBOOTHIRY
For Respondent :SRI.D.KRISHNA PRASAD
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :30/05/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) No. 25950 OF 2004
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Dated this the 30th day of May, 2007
JUDGMENT
Notwithstanding the strong and persuasive submissions of
Sri.M.V.S. Namboothiri, I am not persuaded to hold that Ext.P6 order of
the learned Munsiff dismissing an application for amendment filed by the
petitioner-plaintiff is vitiated to such an extent as to warrant correction by
this Court in its jurisdiction under Article 227 which is visitorial in nature
and is expected to be invoked only in exceptional circumstances. It
cannot be said that Ext.P6 order is wholly unreasonable. The suit was
for return of the advance amount paid on account of an agreement for
sale of property belonging to respondents 1 & 2. There was some
dispute between the petitioner and respondents 1 & 2 regarding the
actual extent of the property. The petitioner requested respondents 1 &
2 to have a measurement of the property so that the correct
consideration payable can be determined. Respondents 1 & 2, for
reasons best known to them, were not willing for a measurement. The
suit was instituted by the petitioner specifically repudiating the contract
on the reason that the respondents 1 & 2 are not willing to have a
measurement and seeking the recovery of advance amount only. In
other words, by filing the suit as one for recovery of advance amount
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only the petitioner has admitted that he does not want a decree for
specific performance. Respondents 3 and 4 are persons who
purchased the property after repudiation of the agreement. On finding
that the consideration set out in the document executed in favour of the
additional defendants 3 & 4 it is far lesser than the consideration for
which the petitioner had contracted to purchase the property, the
petitioner filed the application for amendment so as to convert the suit
as one for specific performance of contract also. The learned Munsiff
rightly found that allowing the amendment will alter the character of the
suit and more importantly, will cause prejudice to the defendants.
Amendment changing the character of the suit may be permissible. But
there is clear embargo in statutory law as well as settled by judgment of
the Supreme Court in M/s.Modi Spinning & Weaving Mills Co.Ltd v.
M/s.Ladha Ram & Co. (AIR 1997 SC 680) and other cases to
amendments causing prejudice to the adversary. Ext.P6 in my opinion
is not liable to be interfered with at any rate in the visitorial jurisdiction
under Article 227 of the Constitution.
The Writ Petition will stand dismissed. No costs.
PIUS C. KURIAKOSE, JUDGE
btt
WPC No.25950/2004
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