IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 16617 of 2004(C)
1. SAJI JOSEPH, MALIYEKKAL HOUSE,
... Petitioner
Vs
1. KOMALAVALLY, PADIYAPPALLIL HOUSE,
... Respondent
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.BECHU KURIAN THOMAS
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :19/06/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) NO. 16617 of 2004
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Dated this the 19th day of June 2007
JUDGMENT
Ext.P4 order by which an application for amendment of
the plaint was dismissed by the learned Subordinate Judge, is
under challenge. The suit is instituted originally was one for
specific performance of contract of sale of immovable property.
Later the suit was amended as one for return of advance money
also. Case of the petitioner is that only through the statement of
objections (Ext.P1) which was filed by the respondents to the
application for amendment of the suit so as to include relief of
return of advance money (I.A. 51/2002) the petitioner came to
have information regarding O.S. No.82/1996 another suit, which
the respondent claims, was filed and decreed against her. The
learned Sub Judge in Ext.P4 dismissed the application mainly on
the reason that the petitioner plaintiff was aware of the pendency
of O.S. No.82/1996 and of the passage of the decree in that suit.
A careful analysis of Ext.P4 will show that there is no material
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other than Ext.P1 itself which would show that the petitioner was
put to notice regarding O.S. 82/1996. The learned counsel for the
respondent submits that both these suits are tried by the same
court and therefore knowledge of O.S.82/96 can be inputed to
the petitioner. May be it is true that both suits are tried by the
same court. But there is no order for joint trial of this suit. No
new materials have been placed before me either of which will
show that before Ext.P4 petition was filed petitioner had been
put to notice regarding O.S. No.82/1996.
2. The learned Subordinate Judge has observed that
allowing the amendment which is to incorporate a prayer for
cancellation of the sale deed which is executed in favour of the
decree holder O.S. 82/1996, will change the character of the
suit. Amendment which change the character of the suit also
can be allowed provided the same does not cause any serious
legal prejudice to the parties. There is some merits in the
contention of the learned counsel for the respondent that if the
amendment is allowed, the suit will become bad for non joinder
of necessary parties since the decree holder in O.S.82/96 will
also be a necessary party to the amended suit. But that cannot
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be a reason for denying the amendment since the case of the
petitioner is that the decree in O.S.82/96 and the consequent
sale deeds are collusive affairs brought into existence from bye
passing the claims in the present suit.
3. I am of the view that amendment application ought to
have been allowed. I set aside Ext.P4 and allow I.A.
No.835/2002. The learned Subordinate Judge will permit the
petitioner, respondent to file additional written statement. It is
open to the respondent to raise all available contentions including
limitation and non joinder of necessary parties to the additional
written statement. If such contentions are raised, the learned
Subordinate Judge will formulate issues in that context and try
these issues along with other issues in the suit.
Since the suit is of the year 1996, the learned Subordinate
Judge will make every endeavor to dispose of the suit at the
earliest.
PIUS C. KURIAKOSE,
JUDGE.
dpk
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