IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14516 of 2009(O)
1. INDHIRABHAI AMMA @ INDHIRA JAYAKUMAR,
... Petitioner
Vs
1. ANTONY KURIAN, KURICHYAPARAMBIL,
... Respondent
2. THE CATHOLIC CYRIAN BANK,
For Petitioner :SRI.CIBI THOMAS
For Respondent :SRI.K.ANAND (A.201)
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :26/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
-----------------------------
W.P.(C).No.14516 OF 2009
--------------------------
Dated this the 26th day of August 2009
-------------------------------------
JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) Issue a writ of certiorari calling for
the records relating to Ext.P6 and quash the
original of the same.
ii) Issue a writ directing the principal
Sub Judge, Kottayam to allow I.A No. 2275/2007 in
O.S No.189/1997 in the interest of justice.
iii) To grant such other reliefs prayed
for from time to time including cost of these
proceedings.
W.P.(C).No.14516 OF 2009 Page numbers
2. Petitioner is the plaintiff in O.S
No.189 of 2007 on the file of the Principal sub
Court, Kottayam. Suit is one for specific
performance of an agreement of sale. The case of
the plaintiff in brief is that the first defendant
had executed an agreement of sale over the suit
property and since there is default on his part to
complete that agreement, a decree for specific
performance has to be passed. The second
defendant, a bank, was also impleaded in the suit
seeking a relief that whatever charge over the
property, in favour of second defendant has to be
got relieved by payment from the sale price due to
the first defendant. An application for amendment
was later moved by the plaintiff to contend that
the sale effected in favour of the second
defendant bank in respect of the suit property has
to be declared as not binding on the plaintiff.
That amendment was opposed by the second defendant
bank. The learned Sub Judge after hearing both
W.P.(C).No.14516 OF 2009 Page numbers
sides dismissed the application for amendment vide
Ext.P6 order. Propriety and correctness of Ext.P6
order 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 counsel on both sides.
Learned counsel, pointing out some mistakes in
Ext.P6 order of the court below, expressing the
view that written statement had been filed by the
second defendant which in fact was not filed
contended that there was no application of mind or
proper appreciating of the amendment moved by the
plaintiff. In Ext.P6 order, the court below has
expressed a view that the proposed amendment
sought for by the plaintiff was to set aside the
judgment and decree passed in the suit in favour
of the second defendant bank. Actually no
such relief was claimed by the proposed
amendment is the submission of the counsel. So
W.P.(C).No.14516 OF 2009 Page numbers
much so, without applying the mind and appreciating
the amendment in the proper perspective it was
dismissed is the grievance canvassed by the learned
counsel for the petitioner. On the other hand,
learned counsel for the second respondent bank
contended that the suit property was outstanding on
a mortgage with the bank and on default of the
first defendant, the debtor, after getting a decree
in the suit, the property was brought to sale and
the bank purchased that property in the auction
held in the year 2001 and delivery was obtained
through court in November 2006. When that be the
case, the present suit instituted by the petitioner
contending that an agreement of sale was entered
with the first defendant in July 1996 and
instituting the suit after the property was sold
through court in favour of the second defendant
bank, according to the counsel, lack bonafides.
Perusing Ext.P6 order passed by the court below
dismissing the application for amendment with
reference to the submissions made by the counsel on
W.P.(C).No.14516 OF 2009 Page numbers
both sides and also the other materials tendered in
the writ petition, I find no reason to interfere
with P6 order. In a suit for specific performance,
the court is concerned only with the question
whether performance of the agreement, an equitable
relief, has to be granted or not. Where a relief
outside the purview of specific performance is
sought for in that suit by way of amendment it will
change the character of the suit. On that solitary
ground itself, the proposed amendment sought for by
the plaintiff was not entertainable without going
into the other aspects involved. That being so the
proposed amendment of the plaintiff was not
entertainable. Writ petition lacks merit, and it
is dismissed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv