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Judgment
A. Badharudeen, J
Order in I.A.3/2020 in O.S.No.1103/2018 on the file of the Munsiff’ Court, Ernakulam is under challenge in this Original Petition filed under
Article 227 of the Constitution of India.
The petitioner, who is the defendant in the above suit is aggrieved in the matter of allowing amendment sought for by the plaintiff by incorporating
prayer for specific performance of contract of agreement, based on which, the plaintiff instituted initially a suit for permanent prohibitory injunction
restraining alienation of the property and forcible eviction.
Heard the learned counsel for the petitioner on admission.
It is submitted by the learned counsel for the petitioner that the agreement was dated 26.12.2017 and if the amendment is given effect, it shall relate
back to the date of filing of the suit and if so, the prayer became pre-mature. This is not a reason to disallow the amendment. Therefore, I leave the
question to be decided by the trial court during trial based on evidence. It is argued by the learned counsel for the petitioner further that the subsequent
plea by way of amendment is barred under Order II Rule 2 CPC. I do not think that incorporating an amendment omitted to be incorporated at the
time of filing of the suit, based on a subsequent cause of action, by way of amendment shall be hit by Order II Rule 2 CPC.
Thus, it appears that the learned Munsiff is right in allowing the amendment application. When the right to sue for specific performance survives in
order to avoid multiplicity of proceedings, the amendment allowed can only be justified. Therefore, this Original Petition deserves no merits and is
accordingly, dismissed.
It is made clear that the petitioner can raise the argument now advanced, before the trial court, during final hearing of the suit.