MATHEW OUSEPH Vs. ASSIMA KACHAMMA

JUDGEMENT

(1.) WHAT was directed by the court in S. A. No. 1168/1964 was that the trial court should give the respondent plaintiff an opportunity to amend his plaint in a particular manner. WHAT the plaintiff ought to have done was to make an application under Order VI R.17 of the Code setting out in terms the amendments he wished to make (see 1954 KLT. 513) and, after that application had been allowed, to carry out the amendments in the original plaint as required by R.18 (see 1970 KLJ. 73). But what he did was to file a new plaint along with an application praying that it may be received as the plaint in the suit (not as the court below has mistakenly stated that the plaint be amended) and it is obvious that allowing this application the court below has acted illegally and with material irregularity in the exercise of its jurisdiction.

(2.) THIS petition is allowed and the order of the court below accepting the plaint is set aside. The respondent plaintiff is given time up to inclusive of the 23rd of this month for making a proper application for amendment to the court below and if he does so within the time allowed the court below will entertain it and dispose of it in accordance with law. But before doing so the respondent plaintiff will pay the petitioner 2nd defendant Rs. 200/- as costs of the present proceeding here and in the court below which costs needless to say, will not be costs in the cause. Allowed