This court dismissed the original petition challenging the subordinate judge's order allowing an amendment to suit pleadings and dismissing a review application, finding no merit in the contention regarding non-hearing of counsel.
The original petition filed under Article 227 of the Constitution was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
TUESDAY, THE 10TH DAY OF SEPTEMBER 2013/19TH BHADRA, 1935
OP(C).No. 3031 of 2013 (O)
PETITIONER(S)/1ST DEFENDANT:
SUDHAKUMARI S.R.
W/O.LATE UNNIKRISHNAN NAIR, SENIOR HINDI TRANSLATOR CGMT, BSNL, THIRUVANANTHAPURAM AND RESIDING AT SAIKRIPA, T.C.77/859, MMRA-157 PETTAH, THIRUVANANTHAPURAM, (NOW RESIDING AT BSNL QUARTERS, PARUTHIPARA, THIRUVANANTHAPURAM).
BY ADVS.SRI.P.K.NIJOY SMT.C.PRABITHA
RESPONDENT(S)/PLAINTIFF AND DEFENDANTS 2,3,4:
R BY SRI.C.A.JOY
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.09.2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 3031 of 2013 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 : TRUE COPY OF THE PLAINT IN OS 645 OF 2007 OF THE 11 ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P1A : TRUE COPY OF THE WRITTEN STATEMENT IN OS 645/2007 OF THE II ADDL.SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P2 : TRUE COPY OF THE AMENDMENT PETITION IA 6076/2012 IN OS 645/2007 OF THE II ADDL.SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P2A : TRUE COPY OF THE OBJECTION TO IA 6076/2012 IN OS 645/2007 OF THE II ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P3 : TRUE COPY OF THE ORDER DT.8-11-2012 IN IA 6076 OF 2012 IN OS 645 OF 2007 OF THE II ADDL. SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P4 : TRUE COPY OF THE REVIEW PETITION IA 6353/2012 IN OS 645/2007 OF THE II ADDL.SUB COURT, THIRUVANANTHAPURAM.
EXHIBIT P4A : TRUE COPY OF THE OBJECTION TO IA 6353/2012 IN OS 645/2007 OF THE II ADDL.SUB COURT, THIRUVANANTHAPURAM. EXHIBIT P5 : TRUE COPY OF THE ORDER DT.12-7-2013 IN IA 6353/2012 IN OS 645/2007 OF THE II ADDL.SUB COURT, THIRUVANANTHAPURAM.
RESPONDENT(S)' EXHIBITS
NIL
P.S.TO JUDGE
P.N.RAVINDRAN, J.
O.P.(C).No.3031 of 2013
Dated this the 10th day of September, 2013
JUDGMENT
The petitioner is the first defendant in O.S.No.645 of 2007 on the file of the Court of the II Additional Subordinate Judge of Thiruvananthapuram. The first respondent is the plaintiff and respondents 2 to 4 are defendants 2 to 4 respectively therein. O.S.No.645 of 2007 was instituted on 10.9.2007 seeking the following reliefs:-
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O.P(C)No.3031/2013
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to the defendants after the death of late Unnikrishnan Nair, they have not chosen to repay the loan amount, thereby necessitating the suit. Upon service of notice, the petitioner and the other defendants entered appearance and filed a written statement resisting the suit. Though the defendants disputed the execution of the agreement of guarantee by the first defendant on 5.1.2005 the creation of a mortgage by deposit of title deed was not disputed.
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application. They contended that the amendment sought does not concur with the pleadings and that the nature of the suit changes from a simple money suit based on a pronote to a suit for sale of the mortgage property. The trial court considered the rival contentions and allowed the application for amendment by Ext.P3 order passed on 8.11.2012. The trial court held that in view of the provisions contained in Order 34 Rule 10 of the Code of Civil Procedure, the plaintiff can file another suit for sale notwithstanding the provisions contained in Order II Rule 2 of the Code of Civil Procedure and that the proposed amendment would only prevent multiplicity of proceedings and wastage of money and time. On the very next day the petitioner filed I.A.No.6353 of 2012 seeking a review of Ext.P3 order. The main contention raised therein was that the defendants were not heard before Ext.P3 order was passed. The plaintiff bank resisted the application by filing Ext.P4(a) objections wherein the bank contended inter alia that Smt.P.Rema, learned counsel appearing for the petitioner was present and she was heard on 8.11.2012. By Ext.P5 order passed on 12.7.2013 the trial court dismissed the application. Exts.P3 and P5 orders are under challenge in this
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original petition filed under Article 227 of the Constitution of India.
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Ext.P3 order was passed. That application was dismissed by Ext.P5 order dated 12.7.2013. Ext.P3 order discloses that it was passed after hearing the learned counsel on both sides. The learned Judge who dismissed the application for review has in Ext.P5 order stated that his predecessor allowed I.A.No.6076 of 2012, the application for amendment, after hearing. The petitioner has no case that the learned counsel appearing for the defendants was not present on 8.11.2012 when I.A.No.6076 of 2012 was heard and allowed by Ext.P3 order. In short, there is no material before this Court to find in favour of the petitioner's contention that the defendants' counsel was not heard before the application for amendment was allowed.
I accordingly hold that there is no merit in the original petition. It fails and is dismissed.
P.N.RAVINDRAN, Judge.
ahg.
P.N.RAVINDRAN, J.
O.P.(C).No.3031 of 2013
JUDGMENT
10th September 2013
Colour shows how this judgement treated each authority
Constitution of IndiaReferred¶59
Article 227 of the Constitution of India
SUDHAKUMARI S.R.
CATHOLIC SYRIAN BANK
CHITRA LEKSHMI U.S.
CHAITHRA LEKSHMI U.S.
OMANAKUTTY AMMA
P.N.RAVINDRAN
As recorded by the court registry
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