High Court Kerala High Court

K.Bhaskaran vs O.C.Saradha on 25 June, 2009

Kerala High Court
K.Bhaskaran vs O.C.Saradha on 25 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 17663 of 2009(O)


1. K.BHASKARAN, S/O.KRISHNAN, AGED 59 YEARS
                      ...  Petitioner

                        Vs



1. O.C.SARADHA, W/O.P.C.KORAN, AGED 86
                       ...       Respondent

2. P.C.SUDHEENDRAN, S/O.KORAN, AGED 56

3. P.C.SUDHEER, S/O.KORAN, AGED 48 YEARS,

4. P.C.SUMITHRAN, S/O.KORAN, AGED 41 YEARS,

5. P.C.SURESH, S/O.KORAN, AGED 45 YEARS,

                For Petitioner  :SRI.R.SURENDRAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :25/06/2009

 O R D E R
              S.S.SATHEESACHANDRAN, J.
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             W.P.(C).NO.17663 OF 2009 (O)
                -----------------------------------
          Dated this the 25th day of June, 2009

                      J U D G M E N T

The writ petition is filed by the 1st defendant in

O.S.No.86/1995 on the file of the Additional Munsiff’s Court,

Kannur. Suit was one for declaration of title and mandatory

injunction, which was instituted by the respondents 1 to 4 in

this petition as plaintiffs. The 5th respondent in the petition

was the 2nd defendant in the suit. The trial court decreed the

suit in favour of the plaintiffs, against which, the petitioner/

1st defendant preferred an appeal. The appeal numbered as

A.S.No.70/2004, it is stated, after being admitted and taken on

file is pending for hearing. Petitioner moved an application

under Order VI Rule 17 of CPC for amending his written

statement in the appeal. The learned Sub Judge, after hearing

that application dismissed it under Ext.P4 order. Correctness

and propriety of that oder is impeached by filing this writ

petition invoking the supervisory jurisdiction vested with this

WPC.17663/09 2

Court under Article 227 of the Constitution of India.

2. Having regard to the submissions made by the

counsel and taking note of the facts and circumstances

involved with reference to Ext.P4 order impugned in the

petition, I find notice to the respondents is not necessary and

it is dispensed with. The learned Sub Judge, it is seen, has

dismissed the application for amendment of the written

statement moved by the petitioner/appellant holding that the

records have not been called for in the appeal, and, further,

sufficient grounds have not been made out for allowing the

amendment application which has been moved at a belated

stage. The course adopted by the learned Sub Judge for

considering the amendment application without even awaiting

for the records of the lower court, which have to be called for

in an appeal as it is rehearing of a suit, is not at all proper.

Further more, when an amendment of the pleading is sought

for by any of the parties in an appeal, it is proper and

advisable to consider that petition at the stage of hearing the

appeal. If the amendment is to be allowed, naturally, the

WPC.17663/09 3

opposite party should be granted permission to submit his

reply thereto, which very often may require setting aside the

impugned judgment and remitting the case to the court below

for fresh disposal. Sometimes, the amendment may be of

innocuous nature and the appellate court, without remission,

can pass appropriate orders and enter a final decision after

giving opportunity to the other sides to meet that amendment.

Whatever that be, it is always advisable to hear an amendment

application moved at the time of hearing of the appeal so that

the whole gamut of issues involved will be presented before

the court to decide whether such amendment is required to be

allowed or not. Ext.P4 order is set aside with direction to the

learned Sub Judge to consider and dispose it along with the

appeal. Writ petition is disposed with the above observations.

S.S.SATHEESACHANDRAN
JUDGE

prp

S.S.SATHEESACHANDRAN, J.

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CRL.R.P.NO. OF 2006 ()

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O R D E R

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23rd March, 2009