MEHROOF MANALODY, S/O. LATE ABOOBACKER HAJI, AGED 44 YEARS, SHAKEELA MANZIL, KINASSERY PO, POKKUNNU, VALAYANAD AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT, CHAIRMAN AND M.D., M/S. GLOSOFT TECHNOLOGIES PRIVATE LIMITED, INDUS AVENUE, KALLAI Vs. V.P. ABDUL KAREEM, S/O ABOO, AGED 55 YEARS, RESIDING AT PLOT NO.4, TAMARIND NEST APARTMENT, CHEROOTY NAGAR, HOUSING COLONY, KALATHIKUNNU AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT

JUDGEMENT

(1.) - The petitioner in this petition challenging the order passed by the 3rd Additional Sub Judge, Kozhikode in I.A.No.2897/2016 in O.S.No.366/12 under Art. 227 of the Constitution of India.

(2.) It is alleged in the petition that the respondent herein filed Ext.P1 suit as O.S. 366/2012 on the file of the 3rd Additional Sub Court, Kozhikode for realisation of Rs. 81,87,328.00 with interest. The amount was claimed on the basis of a memorandum of understanding entered into between the parties. Along with the suit, he had filed an affidavit as contemplated under Sec. 26(2) read with Order 6, Rule 15 (4) of the Code of Civil Procedure. According to the petitioner, in the suit as well as in the affidavit, the respondent had stated that he is filing the suit for and on behalf of the company as chairman and managing director of M/s. Glosoft Technology Pvt. Ltd. The petitioner filed Ext. P2 written statement denying the allegations and liability to pay the amount claimed in the plaint. Ext.P3 is an affidavit filed by the respondent along with an application to amend the plaint in which he had described him as chairman and managing director of the company and by virtue of this amendment, he wanted to delete the seal affixed at the bottom of each page of the plaint. Ext.P4 is the affidavit filed along with I.A. 2896/2016 for re-open the case and receive the fresh affidavit in lieu of the defective affidavit filed along with the plaint under Order 6, Rule 15 (4) of the Code of Civil Procedure. In the affidavit it was mentioned that the suit was filed in his individual capacity and not as the chairman and managing director of the company and it was an inadvertent typographical error which creates an impression that the suit was filed by the company M/s. Glosoft Technology Pvt. Ltd through its managing director and the seal of M/s. Glosoft Technology Pvt. Ltd. was happened to be affixed by mistake and this defect was noted and brought to his notice only on 30.7.2016. Ext.P5 is the counter statement filed by the petitioner to I.A. 2896/2016. Ext.P6 is the affidavit filed by the respondent along with I.A. 2897/2016 to permit him to file a fresh affidavit in lieu of the defective affidavit which happened to be filed along with the plaint under Order 6, Rule 15 (4) of the Code of Civil Procedure. The petitioner filed Ext.P7 counter statement denying the allegations and it was contended that the affidavit filed under Order 6, Rule 15 (4) of the Code of Civil Procedure along with the plaint at the time of institution of the suit cannot be a brushed aside and it cannot be substituted by a fresh affidavit, which will change the nature and character of the suit and hardship will be caused to the petitioner. Ext.P6 application was allowed by the court in part by the impugned Ext.P8 order, thereby the prayer to substitute the earlier affidavit by a fresh affidavit was declined, but the respondent had been permitted to file an additional affidavit in addition to the affidavit which has already been filed in compliance of section 26(2) read with Order 6, Rule 15 (4) of the Code of Civil Procedure. This order is being challenged by the petitioner by filing this petition.

(3.) Heard Sri. C.P. Mohammed Nias, counsel appearing for the petitioner and Sri. S.V. Balakrishna Iyer, senior counsel appearing for the respondent.