MARAMVEETTIL SUMANGALI Vs. VALIYAKATH KAMAL MUHIYUDHEEN

JUDGEMENT

(1.) EXT . P3 IA was filed before the I Additional Sub Court, Kozhikode in OS No. 291/2010 by seeking the amendment of the written statement under Order VI Rule 17 of the Code of Civil Procedure, 1908(for short 'the Code'). The suit is one for specific performance of contract for sale of an immovable property. According to the plaintiff, the defendant had agreed to execute a sale deed in respect of the plaint schedule property for a total consideration of Rs. 85 lakhs and she had obtained an amount of Rs. 20 lakhs by way of part of consideration from the plaintiff through cheques. In spite of demand, the defendant had not cared to execute the sale deed as agreed and hence the suit.

(2.) THE defendant filed a written statement admitting the transaction. The agreement stands admitted and the part of consideration received is also admitted. The contention resorted to by the defendant in the written statement is that the time is the essence of contract and during the period of agreement, in spite of demands, the plaintiff was not ready and willing to perform his part of the contract for getting the sale deed executed by paying the balance consideration. Thereafter, it seems that after the evidence of the plaintiff, the defendant who is the petitioner herein has filed Ext. P3 IA for amending the written statement by incorporating a contention that the defendant has not accepted part of consideration, whereas the amounts were obtained by her husband through two cheques. Ext. P3 was strongly resisted by the plaintiff before the court below. The court below dismissed the IA through Ext. P5 order, which is under challenge in this O P.

(3.) THE learned counsel for the petitioner has argued that the petitioner is entitled to take up alternate pleadings by way of defence. It is also argued that the defendant has never attempted to take away any of the admissions from the written statement whereas the defendant wanted to incorporate the true state of affairs which were not incorporated in the original written statement as the same was prepared and filed by the husband of the defendant.