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E.S. JOSE, S/O. SOLOMON versus M/S. ORIENTAL BANK OF COMMERCE

High Court of Kerala

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E.S. JOSE, S/O. SOLOMON v. M/S. ORIENTAL BANK OF COMMERCE - WP(C) No. 19642 of 2006(L) [2007] RD-KL 12128 (5 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 19642 of 2006(L)

1. E.S. JOSE, S/O. SOLOMON,
... Petitioner

2. CHERRY BABU, AGED 56 YEARS,

Vs

1. M/S. ORIENTAL BANK OF COMMERCE,
... Respondent

For Petitioner :SRI.A.D.BABY

For Respondent :SRI.N.RAJAGOPALAN NAIR

The Hon'ble MR. Justice PIUS C.KURIAKOSE

Dated :05/07/2007

O R D E R

PIUS C. KURIAKOSE, J.

W.P.(C) NO. 19642 of 2006

Dated this the 5th day of July , 2007



JUDGMENT

An application for amendment of the plaint and for inclusion of the names of the two additional defendants in the cause title of the plaint has been allowed by the learned Subordinate Judge under Ext.P5 order. Interestingly, on the day the amendment application came up for consideration before the learned subordinate judge, there was no representation from either of the sides. Nobody sought for an adjournment. But the learned judge, observing that he is not inclined to adjourn the case, has proceeded to allow the application taking the view that the character of the suit will not change. I fail to see how the learned judge can say that the character of the suit will not change by virtue of the amendment. The suit was for simpliciter for decree of injunction and by virtue of amendment, the suit will become converted as one for recovery of money also. To that WPC No.19642/2006 2 extent amendment will certainly change the character of the suit. The law is as settled by the decisions of the Supreme Court and this court, that all amendments even if they change the character of the suit can be allowed provided the amendment do not result any injustice or prejudice to the adversary raised. The learned counsel for the petitioners submits that the proposed amendment will enable the plaintiff to get away from the bar of limitation which has already been settled as against the money claim which is now raised against the petitioners.

2. Sri. Rajagopalan Nair, would submit that there are precedents which lay down that even an amendment which will enable the plaintiff to by pass the plea of limitation can be allowed. The learned counsel for the petitioners does not agree. I do not propose to settle the issue in this court. Since the learned subordinate judge did not have the advantage of hearing the counsel on both sides before passing the impugned order, I set aside the impugned order and direct the learned judge to take fresh decision on the application for amendment after hearing both sides. It is needless to say that the learned judge will carefully consider the ratio emerging from the judicial WPC No.19642/2006 3 precedents which may cited before him by the learned counsel. PIUS C. KURIAKOSE,

JUDGE.

dpk


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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