## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943 OP(C) NO. 1228 OF 2016**
**OS 149/2011 OF SUB COURT, KATTAPPANA, IDUKKI**
**PETITIONER/S:**
VALSAMMAL AGED 56 YEARS W/O. KRISHNANKUTTY, MECHERRIL HOUSE, KATTAPPANA KARA & VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY
## **RESPONDENT/S:**
SAJAN KURIAKOSE S/O. KURIAKOSE, KALLIDAKUZHIYIL HOUSE, VELLAYAMKUDY KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT-685501. BY ADVS. SMT.S.AMBILY SRI.K.K.CHANDRAN PILLAI SR. SMT.NAMITHA NAMBIAR
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
31.08.2021, THE COURT ON 05.11.2021 DELIVERED THE
FOLLOWING:
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## **JUDGMENT**
Dated this the 5[th] day of November, 2021
**Petitioner is the defendant in O.S.No.149 of 2011 on the files of the Subordinate Judge's Court, Kattappana. The respondent has filed the suit, seeking recovery of an amount of Rs.5,21,808/- with interest charged upon the plaint schedule property and Rs.50,000/- towards damages for breach of contract. As per the plaint averments, the respondent had paid an amount of Rs.5,00,000/- as advance based on an agreement for sale between the parties.**
**2. In her written statement, the petitioner contended that the amount sought to be recovered is not advance, but earnest money. According to the petitioner, she had utilized the money for giving advance to purchase another property and the respondent having failed to honour the sale**
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**agreement with her, she could not pay the balance sale consideration, which resulted in the money advanced by her being forfeited by the petitioner's prospective vendor.**
**3. Petitioner filed I.A.No.725 of 2014 seeking to amend the written statement by incorporating a contention that she is entitled to set off the sum of Rs.5,00,000 received as earnest money from the respondent and also raised a counter claim for Rs.3,00,000/- towards damages from the respondent.**
**4. The respondent objected, contending that the amendment application is bereft of** _**bona fides**_ **and barred by limitation. By Ext.P5 order, the trial court allowed the prayer for incorporating the relief of set off and declining permission for raising the counter claim. Aggrieved, the original petition is filed.**
**5. Sri.Mathew John, learned Counsel for the**
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**petitioner contended that, rejection of the amendment application with respect to the counter claim, by placing reliance on Section 3(b)(1) of the Limitation Act is legally unsustainable. The question whether the counter claim is barred by limitation should have been relegated to be considered at the final stage, limitation being a mixed question of fact and law.**
**6. Sri.K.K.Chandran Pillai, learned Senior Counsel appearing for the respondent submitted that the amendment application is filed with the sole intention of protracting the suit. The suit was filed in June 2011 and the petitioner filed her written statement on 18.06.2012. Issues were framed by the Court on 22.05.2013 and the suit was listed for trial on 03.10.2013. The respondent filed his proof affidavit along with documents and was examined-in-chief examination on 03.10.2013. In spite of the petitioner being**
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**present in court, she was not ready to crossexamine the respondent. Hence, the court recorded 'no cross' and posted the case to 11.10.2013 for judgment. In the meanwhile, the petitioner filed an interlocutory application, seeking to review the order recording ‘no cross’ and for permission to cross-examine the respondent. The application was allowed and the case was posted to 28.10.2013 for cross-examination. On 28.10.2013, the matter was sent to Adalath on the petitioner’s request. As the dispute was not settled, the case was sent back to court and posted for evidence. At the request of the petitioner, the case was adjourned to 18.11.2013 and thereafter to 26.11.2013. In the meanwhile, petitioner filed an application (I.A.No.1357 of 2013), seeking to amend the written statement. The respondent filed objection and the I.A was dismissed on 28.11.2013. Since**
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**the petitioner was absent on that day also, she was set ex-parte and the suit was decreed with cost on 30.11.2013. The ex-parte decree was later set aside and it thereafter that the present interlocutory application (I.A.No.725 of 2014) was filed, with the same prayer as in I.A.No.1357 of 2013. According to the learned Senior Counsel, the sequence of events amply demonstrates the deliberate and malicious attempt by the petitioner to protract the proceedings. Even though the trial court committed a mistake in partly allowing the application, the respondent did not challenge the order, since that would result in the suit being delayed further. It is contended that the amendment application is clearly hit by the proviso to Order VI Rule 17 of the Code of Civil Procedure and an earlier application for the same purpose having been**
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**dismissed, the instant application is barred by** _**res judicata**_ **also.**
**7. As rightly contended by the learned Senior Counsel, the sequence of events, leading up to the filing of the second application for amendment, indicate a deliberate attempt to protract the proceedings. In** _**Revajeetu Builders and Developers v. Narayana Swami and others [(2009) 10 SCC 84]**_ **, the Honourable Supreme Court, after careful analysis of Order VI Rule 17 has laid down the factors to be taken into consideration while dealing with an application for amendment. The Apex Court has observed that, while courts must not refuse bona fide, legitimate, honest and necessary amendments, mala fide, worthless and/or dishonest amendments should never be allowed.**
**8. Yet another pertinent aspect is that the amendment application was filed after**
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**commencement of trial. As per the proviso to Order VI Rule 17, an application for amendment filed after commencement of trial, can be allowed only if the applicant is able to establish that despite due diligence, the amendment application could not have been filed earlier. As far as the instant case is concerned, absolutely no such reason is seen stated in amendment application. As held by this Court in** _**Sasikala T.V and another v. C.P.Joseph**_ **[2021 (1) KHC 23], when an application for amendment is filed after commencement of trial, whether or not the opposite party has raised any specific objection, it is the duty of the Court to satisfy itself that the applicant, in spite of due diligence, could not have filed the application at an earlier stage. As rightly contended, an earlier application for amendment having been dismissed,**
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**the second application seeking the same relief is barred by** _**res judicata**_ **also.**
**9. It is true that limitation is a mixed question of fact and law. Even then, as a general rule courts should decline amendments if a fresh suit on the amended claim would be barred by limitation on the date of submission. Being so, the trial court was justified in declining the prayer for incorporating the relief of counter claim raised beyond the period prescribed in Section 3(b)(1) of the Limitation Act.**
**For the aforementioned reasons, the original**
**petition is dismissed.**
## **Sd/-**
**V.G.ARUN JUDGE**
Scl/
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## **APPENDIX OF OP(C) 1228/2016**
PETITIONER EXHIBITS P1 A TRUE COPY OF THE PLAINT FILED BY THE RESPONDENT DATED 13-6-2011, SUB COURT, KATTAPPANA. P2 A TRUE COPY OF THE WRITTEN STATEMENT DATED 18-6-2012 IN O.S.NO. 149 OF 2011 SUB COURT, KATTAPPANA. P3 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER DATED 6-8-2014. P4 A TRUE COPY OF THE OBJECTION DATED 102-2015 IN I.A.NO. 725 OF 2014 IN O.S.NO. 149 OF 2011 SUB COURT, KATTAPPANA. P5 A TRUE COPY OF THE ORDER DATED 6-102015 IN I.A.NO. 725 OF 2014 IN O.S.NOL. 149 OF 2011 SUB COURT, KATTAPPANA.
