Partly allowed

Saji Varghese v. Kunjumol George

Kerala HC28 Feb 2018OP(C)/585/2018

Case brief

AI extract

What is this about?

The High Court granted the petitioner leave to withdraw only the rejected portion of his amendment application regarding the date of cheque, with liberty to file a fresh comprehensive application. The confirmed portion of the amendment application was kept intact. The trial court was directed to consider the fresh application within a stipulated timeframe.

What did the court decide?

Leave granted to withdraw rejected amendment prayer with liberty to file fresh application; confirmed amendment prayer stands allowed;

Saji Varghese Vs Kunjumol George — Contract and Commercial Disputes | Kerala HC (2018)

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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 ALEXANDER THOMAS

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WEDNESDAY, THE 28TH DAY OF FEBRUARY 2018 / 9TH PHALGUNA, 1939

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OP(C).No. 585 of 2018

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I.A. NO.384/2018 IN OS.NO.544/2015 OF MUNSIFF COURT, MAVELIKKARA.

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PETITIONER/PETITIONER/PLAINTIFF

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SAJI VARGHESE, AGED 53 YEARS, S/O. VARGHESE, THATTUPURACKAL PADEETTATHIL VEETTIL, ERUVA SOUTH MURI, PATHIYOOR VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT. BY ADVS.SRI.S.SHANAVAS KHAN SMT.S.INDU.

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1. KUNJUMOL GEORGE, AGED 58 YEARS, W/O. SAMUEL GEORGE, KIZHAKKEYATTATH VEETTIL, VETTIYAR MURI, VETTIYAR VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT-688 001. 2. LINCY GEORGE, AGED 36 YEARS, D/O.SAMUEL GEORGE, KIZHAKKEYATTATH VEETTIL, VETTIYAR MURI, VETTIYAR VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT-688 001. 3. SHOBHI GEORGE, AGED 33 YEARS, S/O.SAMUEL GEORGE, KIZHAKKEYATTATH VEETTIL, VETTIYAR MURI, VETTIYAR VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT-688 001.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs. 06/03/2018.

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OP(C).No. 585 of 2018 (O)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.544/2015 ON THE FILE OF THE MUNSIFF COURT, MAVELIKKARA EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS. EXHIBIT P3 TRUE COPY OF IA NO.384/2018 IN OS NO.544/2015 PRAYING FOR AMENDMENT EXHIBIT P4 TRUE COPY OF OBJECTION FILED BY THE RESPONDENTS TO EXT P3. EXHIBIT P5 CERTIFIED COPY OF THE ORDER DATED 05/02/2018 IN IA NO. 384/2018 IN OS NO. 544/2015 OF THE HON'BLE MUNSIFF COURT, MAVELIKKARA.

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RESPONDENT'S EXHIBITS: NIL.

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//TRUE COPY// P.S. TO JUDGE

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rs. 06/03/2018.

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ALEXANDER THOMAS, J.

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==================

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O.P(C).No. 585 of 2018

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==================

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Dated this the 28^th day of February, 2018 J U D G M E N T

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The main prayers in this Original Petition (Civil) filed under the

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enabling provisions contained in Art.227 of the Constitution of India are as follows:

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“i) Call for the records leading to Ext.P-5 and set aside the same insofar as it relates to the rejection of prayer of amendment of date 11/11/2015 mentioned in line no.13 in paragraph no.3 and line no.3 in paragraph no.9 of Ext.P-1 plaint to 11/11/2014.

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ii) Direct the Hon'ble Munsiff Court, Mavelikkara to reconsider Ext.P-3 and allow the prayer of amendment of date 11/11/2015 mentioned in line no.13 in paragraph no.3 and line no.3 in paragraph no. 9 of Ext.P-1 plaint to 11/11/2014.”

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Heard Sri.S.Shanavas Khan, learned counsel appearing for the petitioner/plaintiff. In the nature of the order that is proposed to be passed in this petition, notice to the respondents/defendants will stand dispensed with.

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The order under challenge is the one at Ext.P-5 dated 5.2.2018 rendered by the Munsiff's Court, Mavelikkara, whereby application filed by the petitioner as Ext.P-3 I.A.No. 384/2018 in O.S.No. 544/2015 seeking amendment of the pleadings in the plaint, has been allowed in part and the same has been dismissed to the limited extent it deals with the amendment of paras 3 and 9 of the plaint. The petitioner is the plaintiff in Ext.P-1 O.S.No. 544/2015 on the file of the Principal Munsiff's Court, Mavelikkara, in which the respondents herein are the defendants therein. The said suit

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O.P(C).585/18 - : 2 :-

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for realization of money based on cheques. As per Ext.P-3 application the petitioner has sought three amendments of Ext.P-3 application out of which, prayer Nos.1 and 3 have been allowed and prayer No.2 alone has been rejected. Prayer No.2 of Ext.P-3 I.A. deals with amendments of the pleadings in paras 3 and 9 of Ext.P-1 plaint to the extent it deals with the date of the cheque and the date on which money was handed over. The plaintiff had handed over an amount of Rs.5 lakhs to the predecessor in interest of the defendants on 11.11.2015 and that the said predecessor had thereupon issued a cheque dated 11.11.2015 for Rs. 5 lakhs. It is the case of the petitioner/plaintiff that the said averments in paras 3 and 9 of the plaint are evidently mistakes inasmuch as in para 4 of the plaint it is clearly stated that the said cheque mentioned in para 3 is a post dated cheque. That obviously, if the cheque is post dated, then there is no question of handing over a cheque dated 11.11.2015 in respect of the money handed over on 11.11.2015 and that as a matter of fact, the money was handed over on 11.11.2014, upon which the predecessor of interest of the defendants had handed over a post dated cheque dated 11.11.2015 for Rs.5 lakhs.

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The petitioner would also contend that the fact that the averments in paras 3 and 9 are evidently a mistake, which could be established not only going by the averments in para 4 of the plaint, but also going further by the computation of accounts appended under para 9 of the

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O.P(C).585/18 - : 3 :-

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plaint, wherein in item No.3 thereof, it is clearly stated that Samual George (predecessor in interest of the defendants) has received the amount of Rs.5 lakhs from the plaintiff on 11.11.2014. That it is without considering these crucial and relevant aspects that the trial court has passed the impugned Ext.P-5 order to the limited extent it has rejected prayer No.2 of Ext.P-3 I.A. for amendment.

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Further Sri.S.Shanavas Khan, learned counsel appearing for the petitioner would submit on the basis of the instructions of his party that the mistake as in paras 3 and 9 of the plaint have also been committed in the averment regarding the cause of action in that plaint, inasmuch as it is stated that the cause of action has arisen on 11.11.2015 when as a matter of fact going by the actual state of affairs, the cause of action has started on 11.11.2014 (the date on which the amount of Rs.5 was handed over by the plaintiff to the predecessor in interest of the defendants). That inadvertently the petitioner has omitted to include a prayer for amendment of the said averment in the cause of action part of the pliant, while making the prayer for amendment in Ext.P-3 I.A. On this basis, Sri.Shanavas Khan, learned counsel appearing for the petitioner submits that leave may be granted to the petitioner to withdraw Ext.P-3 I.A. for amendment to the limited extent it deals with prayer No.2 thereof with liberty to the petitioner to file comprehensive fresh application dealing with the amendments of

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O.P(C).585/18 - : 4 :-

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para 3 and para 9 of the plaint as well as the cause of action of the plaint, etc. and that the said application, which may be filed afresh by the plaintiff may be directed to be considered by the trial court afresh and independently and taking note of the abovesaid submissions of the petitioner. The said submission made on behalf of the petitioner could be considered. Accordingly it is ordered that leave is granted to the petitioner to withdraw Ext.P-3 I.A. only to the limited extent it deals with prayer No.2 thereof in the matter of amendment of pleadings in paras 3 and 9 of the plaint with liberty to the petitioner to file a comprehensive fresh application to deal with such amendments regarding the handing over of the money and the date of the cheque, as stated herein above. However it is made clear that the relief given in the impugned Ext.P-5 order to the extent it grants prayer Nos. 1 and 3 of Ext.P-3 I.A. will stand confirmed. The impugned Ext.P-3 order to the limited extent it deals with the refusal of prayer No.2 of Ext.P-3 I.A. will stand modified with the direction that Ext.P-3 I.A. to the limited extend it deals with prayer No.2 thereof will stand dismissed as withdrawn with liberty to the petitioner to file fresh application as mentioned herein above. If such an application is filed by the petitioner without much delay, preferably within ten days from the date notified for receiving certified copy of this judgment, then the said application should be considered afresh by the court below independently

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O.P(C).585/18 - : 5 :-

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and after hearing both sides, will render a considered decision thereon after taking note of the submissions and contentions now made by the petitioner as referred to herein above. Orders in this regard should be passed by the trial court without much delay, preferably within a period two to three weeks from the date of filing of such application, after granting necessary time to the defendants/respondents in that I.A. to file their objections/ counter statement if any. The petitioner will produce a certified copy of this judgment before the court below concerned for necessary information.

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With these observations and directions, the above Original Petition (Civil) stands finally disposed of.

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Sd/-

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sdk+ ALEXANDER THOMAS, JUDGE ///True Copy///

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P.S. to Judge

Saji Varghese v. Kunjumol George

Case brief

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Saji Varghese v. Kunjumol George

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