Unnikrishnan (Died) vs Sivakumar
2021 Latest Caselaw 18383 Ker

  OP(C).657/17                     1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                 THE HONOURABLE MR.JUSTICE V.G.ARUN
  TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
                       OP(C) NO. 657 OF 2017
     AGAINST THE ORDER/JUDGMENT IN OS 3/2014 OF SUB COURT,
                        CHERTHALA, ALAPPUZHA
PETITIONER/S:

    1      UNNIKRISHNAN (DIED)
           AGED 56 YEARS
           S/O NARAYANAN, AGED:56 YEARS, REVATHIYIL,
           ARAYATTATTU PUTHENPURAYIL, AROOKUTTY PO, CHERTHALA

    2      RAJALEKSHMI
           W/O UNNIKRISHNAN
           AGED 48 YEARS, REVATHIYIL
           ARAYATTATTU PUTHENPURAYIL
           AROOKUTTY P O
           CHERTHALA 688535

    3      KIRAN U
           S/O UNNIKRISHNAN
           AGED 24 YEARS, REVATHIYIL
           ARAYATTATTU PUTHENPURAYIL
           AROOKUTTY P O
           CHERTHALA 688535

    4      AMAL U
           S/O UNNIKRISHNAN
           AGED 20 YEARS, REVATHIYIL
           ARAYATTATTU PUTHENPURAYIL
           AROOKUTTY P O
           CHERTHALA 688535


           (ADDL. P2 TO P4 IMPLEADED AS THE LR'S OF DECEASED
           SOLE PETITIONER VIDE ORDER DATED 06.07.201 IN
           I.A.NO. 2/2019)

           BY ADV M.H.HANIS
   OP(C).657/17                       2

RESPONDENT/S:

            SIVAKUMAR
            S/O VELAYUDHAN NAIR, VELIYAMKUNNATH VEETTIL,
            VALAMANGALAM SOUTH PO, THURAVOOR, CHERTHALA, PIN-688
            532

            BY ADV SRI.J.OM PRAKASH




     THIS    OP   (CIVIL)   HAVING    COME   UP   FOR   ADMISSION   ON
22.7.2021, THE COURT ON 07.09.2021 DELIVERED THE FOLLOWING:
   OP(C).657/17                       3




                             V.G.ARUN, J.
              -----------------------------------------------
                      OP(C).No. 657 of 2017
              -----------------------------------------------
           Dated this the 7th day of September, 2021

                             JUDGMENT

The petitioners are the legal heirs of the deceased defendant in

O.S.No.3 of 2014 on the files of the Sub Court, Cherthala. The suit is

filed by the respondent seeking to recover Rs.9,95,000/- with interest

from the defendant. The allegation in the plaint is that the defendant

had borrowed an amount of Rs.9,95,000/- from the plaintiff and had

issued a cheque for the amount towards discharge of the said

liability. The cheque was dishonoured for insufficiency of funds and

despite issuance of notice, the amount was not repaid.

2. In their written statement, the defendant denied the

transaction and alleged that the actual transaction According to the

defendants, the actual transaction was between the plaintiff and one

Sindhu Akhileshan and the defendant's wife (1st respondent herein)

had stood as a mediator for the transaction. When Sidhu Akhileshan

failed to repay the amount borrowed by her, the plaintiff, who is a

money lender, threatened the defendant and obtained blank

cheques from him. Even though the defendant repaid the principal

amount borrowed by Sindhi Akhileshan, the suit was filed raising

false allegations.

3. After the suit was listed for trial, the respondent moved an

application for amendment which the court below allowed vide

Exhibit P5 order. Hence, the original petition.

4. Heard Sri.Hanis M.H., learned counsel for the petitioners and

Sri.J.Om Prakash, learned counsel for the respondent.

5. Learned counsel for the petitioners contended that by the

amendment, the very structure of the suit is changed and the

respondent will succeed in filling up the lacuna in his pleadings.

Moreover, the facts sought to be incorporated through the

amendment were known to the respondent prior to the time of filing

the suit. Hence, the court below is not justified in allowing the

belated amendment application.

6. Learned counsel for the respondent contended that the

amendments are only clarificatory in nature and will not in any

manner alter the nature of the suit or the cause of action.

7. In the impugned order, after referring to the amendments,

the learned Sub Judge has found that the amendments to be

explanatory and clarificatory in nature, which does not affect the

basic structure or the nature of the suit or pleading. It is also found

that the amendment sought is necessary for determining the real

controversy and will not in any way cause prejudice or irreparable

injury to the respondents.

8. It is settled law that Courts should adopt a liberal approach in

the matter of amendment. The general principle is that amendment

of pleadings cannot be allowed when the attempt is to introduce a

new case, or substitute the cause of action or the nature of the

claim. A perusal of the plaint and the amendment application reveals

that the basic pleadings were made in the plaint itself and that the

amendment is only for the purpose of bringing clarity to those

pleadings. As such, neither will the nature of the suit be changed nor

the defendants be put to prejudice by allowing the amendment.

Hence I find no reason to interfere with the order in exercise of the

power under Article 227 of the Constitution of India.

In the result, the original petition is dismissed.

Sd/-

                                           V.G.ARUN, JUDGE

vgs


                    APPENDIX OF OP(C) 657/2017

PETITIONER EXHIBITS

P1                    TRUE COPY OF THE PLAINT IN OS NO. 3/2014
                      ON THE FILE OF SUB COURT, CHERTHALA

P2                    TRUE COPY FO THE WRITTEN STATEMENT

P3                    TRUE COPY OF IA NO. 481/2016 IN OS NO
                      9/2014

P4                    TRUE COPY OF THE OBJECTION FILED BY THE
                      PETITIONERS

P5                    CERTIFIED COPY OF THE ORDER DATED
                      4/10/2016 ON IA 481/2016 IN OS NO. 3/2014
                      OF SUB COURT, CHERTHALA