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A.V.JANARDHANAN, S/O. RAMAN v. THAMBURANKANDY KAMBIL RACHANA - WP(C) No. 36018 of 2004(K)  RD-KL 1506 (19 January 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWP(C) No. 36018 of 2004(K)
1. A.V.JANARDHANAN, S/O. RAMAN,
2. T.K.HARISH @ T.K.HAREESAN,
1. THAMBURANKANDY KAMBIL RACHANA,
2. THAMBURANKANDY SOBHA, D/O. AMBUJAKSHI,
3. T.K.VINOD, S/O. AMBUJAKSHI,
4. K.PREMAVALLI, W/O. JANARDHANAN,
5. A.V.RANJITH, S/O. JANARDHANAN,
6. GOVERNMENT OF KERALA,
For Petitioner :SRI.K.V.SOHAN
For Respondent :SRI.V.RAMKUMAR NAMBIAR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR,J.W.P.(C)NO.36018 OF 2004
DATED THIS THE 19th DAY OF JANUARY, 2007
Defendants 2 and 4 in O.S.37/01 on the file of Sub Court, Thalassery are petitioners. First respondent is plaintiff and other respondents other defendants. Suit was filed for partition of plaint schedule property contending that though she was represented by her mother in O.S.113/1986 , the mother did not look after her interest and therefore irrespective of the decree in the said suit, she is entitled to get her share separated. When the suit was pending petitioner filed I.A.2946/04, an application under Order VI Rule 17 of Code of Civil Procedure to add additional relief of setting aside the decree in O.S.113/1986. Petitioners opposed the application contending that the prayer is not maintainable as suit was not instituted within three years of attaining majority and therefore first respondent is not entitled to get the plaint amended incorporating a time barred relief. Under Ext.P2 learned Sub Judge allowed the application. It is challenged in this petition filed under Article 227 of Constitution of India.
2. Learned Counsel appearing for petitioners and respondents were heard. W.P.(c)36018/04 2
3. Under Order VI Rule 17, learned Sub Judge has wide discretion to allow the plaintiff to amend the plaint for a just decision of the case. What was contend by petitioners is that first respondent is not entitled to add a relief , which was barred by time as no suit was instituted to set aside the decree in O.S.113/1986 within three years of attaining majority as first respondent was a party to the suit and therefore Ext.P2 order is to be set aside.
4. Learned Counsel appearing for first respondent pointed out that subsequently petitioners filed an additional written statement raising contentions of limitation and the question whether the relief added by amendment is barred or not is also to be decided by learned Sub Judge in the suit and in such circumstances, Ext.P2 may not be interfered.
5. Learned Counsel appearing for petitioners then submitted that as the question of bar of limitation goes to the very root of the case, learned Sub Judge may be directed to consider the question of limitation as a preliminary issue. It is submitted by learned Counsel on both sides that after the filing of additional written statement an issue regarding the bar of limitation has already been raised by learned Sub Judge. Learned Counsel appearing for petitioners also submitted that even if the date of birth as contended by first respondent is accepted, though it was disputed, the claim would be barred by time. W.P.(c)36018/04 3
6. In the circumstances of the case I do not find any infirmity in Ext.P2 order. Petitioners are entitled to raise the plea of limitation in the suit. Sub Judge is directed to consider the issue regarding bar of limitation, as a preliminary issue and dispose the question before recording evidence on other issues. Writ petition is disposed accordingly.
M.SASIDHARAN NAMBIAR,JUDGEAcd W.P.(c)36018/04 4
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