IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 318 of 2011(O)
1. INDIRA PRASAD, AGED 38 YEARS,
... Petitioner
Vs
1. LALITHA HARIDAS, AGED 45 YEARS,
... Respondent
For Petitioner :SRI.V.M.KRISHNAKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :01/02/2011
O R D E R
K.T.SANKARAN, J.
------------------------------------------------------
O.P.(C). NO. 318 OF 2011 O
------------------------------------------------------
Dated this the 1st day of February, 2011
JUDGMENT
The defendant in O.S.No.401 of 2009 on the file of the Court
of the Principal Subordinate Judge, Irinjalakuda challenges the order
dated 10.12.2010 in I.A.No.3614 of 2010, by which, the court below
allowed the application filed by the respondent/plaintiff for
amendment of the plaint.
2. The suit was filed by the respondent/plaintiff for realisation
of Rupees Five lakhs with interest. The plaintiff and the defendant
are sisters. According to the plaintiff, a cheque dated 25.6.2009 was
issued by the defendant in discharge of the liability to the tune of
Rupees Five lakhs. The cheque was dishonoured on the ground that
the account was closed. In paragraph 6 of the plaint, it is stated that
cause of action arose on 25.6.2009, the date on which the defendant
signed and issued the cheque.
3. The defendant denied the transaction. According to her,
the cheque is not a genuine one. A criminal case was initiated
O.P.(C) NO.318 OF 2011 O
:: 2 ::
against the plaintiff and her husband for theft, misappropriation of
funds and for criminal breach of trust. The case of the defendant is
that she is residing with her husband in United States of America.
Various amounts were sent by her to the plaintiff. The plaintiff
misappropriated those funds and siphoned off the funds for her
benefit. The cheque in question was not issued by the defendant.
On 25.6.2009, the defendant was not in India. It is also stated in the
written statement that with effect from 16.10.2006, the defendant
changed her name and signature, by issuing appropriate notification
in the gazette. The signature in the cheque was the old signature
and that itself shows that the cheque was not issued by the
defendant. The written statement was filed on 6.10.2009.
4. On 4.10.2010, the plaintiff filed I.A.No.3614 of 2010 for
amendment of the plaint. The amendment sought for is to
incorporate in page 2 of the plaint that the cheque was issued on
12.6.2008. An amendment was also sought to be introduced in the
cause of action to show that the cheque was issued on 12.6.2008.
In the affidavit accompanying the application, it is stated that the
cheque was issued by the defendant on 12.6.2008. Going by the
O.P.(C) NO.318 OF 2011 O
:: 3 ::
averments in the plaint, it is seen that the cheque is dated 25.6.2009.
That is not sought to be changed. The court below, by the order
impugned, allowed the application for amendment. It was held that
registration of a crime against the plaintiff is not a sufficient ground
for disallowing the application for amendment. It was also held that
the amendment will not alter the nature and character of the suit.
5. Sri.Ranjith Thamban, the learned Senior Counsel
appearing for the petitioner, submitted that the admission made in
the plaint is sought to be withdrawn by the proposed amendment. It
is also submitted that the application for amendment was filed after
one year of the date of filing of the written statement. A date is
deliberately and conveniently found out by the plaintiff and it is
sought to be incorporated as the date on which the cheque was
issued.
6. It is true that in paragraph 6 of the plaint, it is stated that the
cause of action arose on 25.6.2009. In paragraphs 2 and 3 of the
plaint, the statement is that the cheque is dated 25.6.2009. The date
of issue of the cheque is not mentioned in paragraphs 2 and 3. The
O.P.(C) NO.318 OF 2011 O
:: 4 ::
only statement which is found in the plaint as to the date on which
the cheque was issued is in paragraph 6. In the affidavit
accompanying the application for amendment of the plaint, it is
stated that a mistake crept in, which requires to be corrected.
7. The court below held that the defendant would be entitled
to file an additional written statement and that all the contentions
could be taken in the additional written statement. It is made clear
that the defendant would be entitled to raise all the contentions
including the contention that an admission is sought to be withdrawn
by amendment of the plaint. The question whether there was
admission also will be considered at the time of trial. Reserving the
right of the defendant to file additional written statement, the court
below allowed the application. I do not find any ground to interfere
with the well considered order passed by the court below. There is
no error of jurisdiction or failure of justice.
The Original Petition is, accordingly, dismissed.
(K.T.SANKARAN)
Judge
ahz/