Allowed

N.K.Alavudeen v. Mohamemd Hashim

Kerala HC1 Dec 2012OP(C)/3777/2012

Case brief

AI extract

What is this about?

This judgment allows an application for amendment of a written statement in a specific performance suit. The High Court set aside the impugned order dismissing the amendment, permitting the defendant to clarify that the agreement was a loan transaction rather than a sale.

What did the court decide?

Set aside the impugned order and allow I.A. No. 921/2012; direct the court below to dispose of the suit within six weeks.

N.K.Alavudeen Vs Mohamemd Hashim — Specific Performance | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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SATURDAY, THE 1ST DAY OF DECEMBER 2012/10TH AGRAHAYANA 1934

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OP(C).No. 3777 of 2012 (O)

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-------------------------IA.NO.921/2012 IN OS.110/2008 OF SUB COURT, NEDUMANGAD

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PETITIONER :

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N.K.ALAVUDEEN, AGED 49 YEARS S/O.N.P.N.KHAN, TC 28/1196 (SWARA-58) SREEKANTESWARAM, FORT P.O., VANCHIYOOR VILLAGE THIRUVANANTHAPURAM-695 008 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SMT. SOPHIA ALAVUDDIN, AGED 43 YEARS, RESIDING AT TC 28/1196 (SWARA-58), SREEKANTESWARAM, FORT P.O., VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM-695 008.

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BY ADVS.SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS

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RESPONDENT(S):

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1. MOHAMMED HASHIM, AGED 53 YEARS, S/O.HAJI SAINUDEEN, PUTHEN BUNGALOW, KOLLAMKAU VADAKKUMKARA MURI, KARIPPOOR VILLAGE PAZHAKUTTY P.O., NEDUMANGAD, PIN-695 541.

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2. MANAGER CANFIN HOMES, THIRUVANANTHAPURAM BRANCH, M.G.ROAD NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM-695 001.

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3. THE MANAGING DIRIECTOR CANFIN HOMES, HEAD OFFICE BANGALORE APARTMENTS BA-1, NIKUNJAM ROYALE DPI JUNCTION, BKAKTHI VILASAM ROAD, THYCAUD P.O.,

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TRIVANDRUM-695 001.

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R3 BY ADV. SRI.C.AJITH KUMAR

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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...2/-

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OP(C).No. 3777 of 2012 (O)

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APPENDIX

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PETITIONERS' EXHIBITS :

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EXHIBIT P1. COPY OF THE PLAINT IN OS NO.110/2008 PENDING ON THE FIELS OF THE SUBORDINATE JUDGE'S COURT, NEDUMANGAD.

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EXHIBIT P2. COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER AS 1ST DEFENDANT IN EXT.P1 SUIT.

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EXHIBIT P3. COPY OF THE AFFIDAVIT AND THE AMENDMENT PETITION AS IA NO.921/2012 IN EXT.P1 SUIT.

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EXHIBIT P4. COPY OF ORDER DATED 20/7/2012 DISMISSING EXT.P3.

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RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

P.S. TO JUDGE

V.CHITAMBARESH, J

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O.P.No.3777 of 2012

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Dated this the 1^st day of December , 2012

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JUDGMENT

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It is trite law that Court has to be more liberal in the matter of amendment of the written statement than in the case of amendment of a plaint. The first defendant in the suit for specific performance only wanted to place certain additional facts to be in tune with his earlier contentions. The first defendant wanted to clarify that the transaction in question is a loan transaction and not a sale transaction as alleged.

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It is the case of the first defendant that SARFAESI proceedings had been initiated against other property of his. It is further contended that the property in question belonging to his sister was taken assignment of by him. This was solely for the purpose of raising loan to ward off the SARFAESI proceedings. Thus the suit agreement happened to be executed while availing loan though styled as a sale agreement.

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The facts now pleaded by the first defendant are to be considered by the court below at the time of trial. Suffice to say that the fabric of the defence set out earlier in the original

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O.P.No.3777 of 2012

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written statement is not sought to be altered. The plaintiff is not prejudiced in any manner by permitting amendment of the written statement. The court below erred in disallowing the application for amendment of the written statement under the circumstances.

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I set aside the impugned order and allow I.A.No. 921/2012 in O.S.No.1010/2008 on the file of the Court of the Subordinate Judge of Nedumangad. The court below shall expedite the proceedings and dispose of the suit finally within a period of 'six weeks' from the date of receipt of a copy of this judgment.

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The Original Petition is disposed of accordingly. No costs.

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V.CHITAMBARESH JUDGE

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N.K.Alavudeen v. Mohamemd Hashim

Case brief

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N.K.Alavudeen v. Mohamemd Hashim

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