Kerala High Court
Rajaeakshmi vs Sivakumar on 7 September, 2021
OP(C).656/2017 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. 656 OF 2017
AGAINST THE ORDER/JUDGMENT IN OS 9/2014 OF SUB COURT,
CHERTHALA, ALAPPUZHA
PETITIONER/S:
1 RAJAEAKSHMI
W/O UNNIKRISHNAN, AGED:46 YEARS, REVATHIYIL,
ARAYATTATTU PUTHENPURAYIL, AROOKUTTY PO, CHERTHALA
2 UNNIKRISHNAN
S/O NARAYANAN, AGED:56 YEARS, REVATHIYIL,
ARAYATTATTU PUTHENPURAYIL, AROOKUTTY PO, CHERTHALA
3 KIRAN U
S/O UNNIKRISHNAN, AGED 24, REVATHIYIL, ARAYATTATTU
PUTHENPURAYIL, AROORKUTTY PO, CHERTHALA-688535
4 AMAL U
S/O UNNIKRISHNAN, AGED 20, REVATHIYIL, ARAYATTATTU
PUTHENPURAYIL, AROORKUTTY PO, CHERTHALA-688535.
(ADDL P3 & P4 ARE IMPLEADED AS LEGAL HEIRS OF P2
VIDE ORDER DATED 06.07.2021.)
BY ADV M.H.HANIS
RESPONDENT:
SIVAKUMAR
S/O VELAYUDHAN NAIR, VELIYAMKUNNATH VEETTIL,
VALAMANGALAM SOUTH PO, THURAVOOR, CHERTHALA.PI-
682....
BY ADV SRI.J.OM PRAKASH
OP(C).656/2017 2
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).656/2017 3
V.G.ARUN, J.
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OP(C).No.656 of 2017
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Dated this the 7th day of September, 2021
JUDGMENT
The 1st petitioner is the 1st defendant in O.S.No.9 of 2014 on
the files of the Sub Court, Cherthala. Petitioners 3 to 4 are the legal
heirs of the deceased 2nd defendant. The suit is filed by the
respondent for recovery of an amount of Rs.10,28,598/- with
interest. The allegation in the plaint is that the defendants had
borrowed an amount of Rs.10 lakhs from the plaintiff and had issued
a cheque 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 defendants denied the
transaction. According to the defendants, the actual transaction was
between the plaintiff and one Sindhu Akhileshan and the 1 st
defendant had stood as a mediator for that transaction. When Sidhu
Akhileshan failed to repay the amount borrowed by her, the plaintiff,
who is a money lender, threatened the defendants and obtained
signed blank cheques from them. Even though defendants repaid
the principal amount, 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 filing of 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 the amendments to be explanatory
and clarificatory in nature. 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 liberal approach should be adopted 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) 656/2017
PETITIONER EXHIBITS
P1 TRUE COPY OF THE PLAINT IN OS NO. 9/2014
ON THE FILE FO SUB COURT, CHERTHALA
P2 TRUE COPY OF THE WRITTEN STATEMENT
P3 TRUE COPY OF IA NO. 480/2016 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 NO. 480/2016 IN OS NO.
9/2014 OF SUB COURT, CHERTHALA
