IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15357 of 2006(C)
1. P.C.MATHEW, AGED 42 YEARS,
... Petitioner
Vs
1. RARICHAKANDIYIL PRABHAKARAN,
... Respondent
2. KANNAM VEETTIL SURENDRAN,
3. KANNAM VEETTIL SYAM SUNDER,
4. NAMBIYAMBARAMBATH SHOBITH RAJ,
For Petitioner :SRI.C.P.MOHAMMED NIAS
For Respondent :SRI.R.BINDU (SASTHAMANGALAM)
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :25/11/2008
O R D E R
K.P. Balachandran, J.
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W.P.(C)No.15357 of 2006 C
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JUDGMENT
Petitioner is the defendant in O.S.No.100/04 on
the file of the II Additional Munsiff’s Court,
Kozhikode. The suit is one for damages for
malicious prosecution. A petition for amendment of
the plaint was filed by the respondents, who were
the plaintiffs in the suit, which, according to the
petitioner, was in an attempt to see that question
of limitation is circumvented and therefore, the
amendment was opposed by filing a counter. But,
however, the court below allowed the amendment by
Exhibit P4 order. Though the prayer in the writ
petition is to set aside Exhibit P4 order or in the
alternative to direct the court below to re-hear
the amendment application (I.A.No.834/06), counsel
for the petitioner submits that petitioner was
constrained to file this writ petition advancing
such a prayer, as the court below, while allowing
amendment of the plaint, has made an observation to
WPC 15357/06 2
the effect that the suit is not barred by
limitation. According to him, he does not find
fault with for having allowed the amendment of the
plaint, but at the same time, the question as to
whether the suit is barred by limitation is a
matter to be decided after raising issues and
adducing evidence and on the materials that are
furnished before court and that in view of the
observations in Exhibit P4 order, petitioner may
not be estopped from raising contentions in the
suit that the suit is barred by limitation.
2. Counsel for the respondents submits that
the question of limitation was considered by the
court only because it was so argued by the counsel
for the petitioner and that in fact such an
observation would not have been warranted while
allowing the amendment application. In the
circumstances, I order that the observations made
by the court below as regards the applicability or
otherwise of the bar of limitation to the claim in
WPC 15357/06 3
the suit will not affect the contentions of the
defendant that may be raised by an issue in the
suit and that the court below will have to enter
finding on that issue, considering the pleadings
and evidence that may be adduced at the time of
trial untrammeled by any of the observations made
in Exhibit P4 order of the court below.
The writ petition is disposed of as above.
25th November, 2008 (K.P.Balachandran, Judge)
tkv