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S.V. SURENDRANATH versus K.R. SOMAN

High Court of Kerala

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S.V. SURENDRANATH v. K.R. SOMAN - WP(C) No. 21782 of 2006(R) [2006] RD-KL 1487 (31 October 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 21782 of 2006(R)

1. S.V. SURENDRANATH, AGED 58 YEARS,
... Petitioner

Vs

1. K.R. SOMAN, S/O. RAJAN NAIR,
... Respondent

2. GOPALAKRISHNAN, S/O.NARAYANAN NAIR,

For Petitioner :SRI.K.K.CHANDRAN PILLAI

For Respondent :SRI.A.C.CHACKO

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :31/10/2006

O R D E R

M.SASIDHARAN NAMBIAR,J.

W.P.(C) .NO. 21782 OF 2006 Dated 31st October 2006

JUDGMENT

Petitioner is first defendant in O.S.40/97 on the file of Sub court, Muvattupuzha. Petitioner is challenging Ext.P5 order passed by learned Sub Judge dismissing Ext.P3 application filed under Order VI Rule 17 of Code of Civil Procedure to amend the written statement. Amendment sought for is with regard to paragraph 5 of written statement wherein contention regarding agreement for sale is sought to be amended from Rs.7 Lakhs to Rs.9.25 Lakhs. Learned Sub Judge dismissed the application holding that amendment if allowed would take away the admission which is available to plaintiff and that too at a belated stage after evidence was recorded and therefore it cannot be allowed. Learned counsel appearing for respondent vehemently argued that after seven years from the date of filing of written statement and recording of evidence the admission 2 cannot be taken away and therefore there is no reason to interfere with Ext.P5 order. Learned counsel appearing for petitioner argued that by proposed amendment no admission is taken away and only a mistake is being corrected as it was specifically pleaded in para 5 of written statement itself that petitioner was compelled to agree to sell the property for Rs.9.25 Lakhs and no admission is taken away.

2. Order VI Rule 17 gives vide discretion to the court to allow parties to amend pleadings, if it is necessary for a just decision of the case. Question is whether proposed amendment is necessary for a just decision of the case. A reading of para 5 of written statement shows that it has been specifically contended by petitioner that he was compelled to agree to sell property for a total consideration of Rs.9.25 Lakhs out of which Rs.2,25,000/- was paid and balance of Rs.7 Lakhs is to be paid. If that be the case, proposed amendment is only to correct the mistake crept in. In the light of. In the light of the pleadings it cannot be said that any admission in the original written statement 3 are taken away. An application for amendment of written statement has to be liberally construed. As held by the Apex court in Estralla Rubber v. Dass Estate Pvt. Ltd (AIR 2001 (3) SC 3295) even if there was some admissions in the evidence and in the written statement it is still open to the party to explain the same by filing application for amendment. This principle was later reiterated in Baldev Singh v. Manohar Singh (AIR 2006 SC 2832). True, application was filed at belated stage. But the proposed amendment is necessitated due to the mistake that has crept in the pleadings. Petitioner has stated in the affidavit, the mistake in the written statement was found only then and in spite of due diligence the application could not be filed earlier. In such circumstances the petition should not have rejected the application on the ground of delay. More over in the circumstances of the case, if the amendment is allowed it will not in any way cause prejudice to the plaintiff. Ext.P5 order is quashed. Petitioner is permitted to amend the written statement as sought for in Ext.P3. Writ petition is allowed. 4 M.SASIDHARAN NAMBIAR,

JUDGE.

uj.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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