IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 8207 of 2005(B)
1. KRISHNA KARANAVAR,
... Petitioner
2. AMBIKAMMA, W/O. KRISHNA KARANAVAR, -DO-
3. VISWANATHAN, S/O.KRISHNA KARANAVAR -DO-.
Vs
1. S.BINDHU @ CHANDRAMATHI BINDHU,
... Respondent
2. BABY, S/O. GEEVARGHESE,
3. PONNAMMA, W/O. THOMAS,
4. KUTTAPPAN NAIR, S/O. KESAVAN NAIR,
For Petitioner :DR.P.S.KRISHNA PILLAI
For Respondent :SMT.A.R.USHA
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :02/08/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) NO. 8207 of 2005
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Dated this the 2nd day of August, 2007
JUDGMENT
Ext.P9 order by which the learned Sub Judge allowed a
thorough amendment of the suit so as to change the respondent’s
date of birth, her name, her initials, her father’s name and such
relevant particulars, is under challenge in this proceedings under
Article 227 of the constitution initiated by the defendants. Dr.P.S.
Krishna Pillai, the learned counsel for the petitioners has addressed me
very strenuously and elaborately. I have heard the submissions of
Smt.A.R.Usha, the learned counsel for the respondent also.
Sri.Krishna Pillai submitted that the impugned order will result in
serious prejudice to the petitioner in as much as the same may enable
the plaintiff to get over the bar of limitation which has already set in
agaisnt the reliefs sought for in the suit. The learned counsel relied on
Sampath Kumar v. Ayyakannu and Another (2002 (7) Supreme
Court Cases 559) and submitted that Ext.P9 order should be made
prospective in opperation i.e. with effect from the date of the
amendment application and not earlier. Counsel submitted that the
orders of the statutory authorities passed pursuant to the judgment of
WPC No.8207/2005 2
this court in Ext.P6 judgment were without notice to the petitioner and
behind the back of the petitioners and therefore the petitioners should
be permitted to challenge those orders in the suit itself since
successful challenge of those orders can lead to dismissal of the suit
itself. Counsel submitted that the impugned order has been passed by
the learned Sub Judge in a very casual manner as if all amendment
applications whenever filed will have to be allowed by the learned Sub
Judge.
3. Smt.Usha the learned counsel for the respondent would
support the impugned order. According to her, the principles
governing exercise of powers under Order 6 Rule 17 have been kept in
mind by the learned Sub Judge. It cannot be said that any injustice or
prejudice will be occasioned if the order is not set aside.
4. I have considered the rival submissions made at the bar. I
do not find any patent illegality about the impugned order warranting
corrections under Article 227 of the Constitution. However, I agree
with Mr. Krishna Pillai’s alternative submission that the learned Sub
Judge was too soft in the matter of imposition of cost. I modify Ext.P9
order to the extent of enhancing the cost which is presently ordered as
Rs.500/- by Rs.2,500/-.(Rs.Two Thousand Five Hundred only) The
total cost of Rs.3,000/- (Three Thousand) will be paid by the 1st
WPC No.8207/2005 3
respondent (plaintiff) to the petitioners either directly or through
counsel in this court within one month from today, failing which the
amendment application will stand dismissed. The learned Sub Judge
will afford sufficient opportunities to the petitioners for filing the
additional written statement. It is open to the petitioners to raise
contentions through additional written statement in challenge of orders
of the statutory authority allowing corrections of the date of birth of
the 1st respondent. All legally available contentions should be
permitted to be raised by the petitioners.
The writ petition is disposed of as above . No costs.
PIUS C. KURIAKOSE,
JUDGE.
Dpk