SHAJUL HAMEED Vs. MOHAMMED HABIBULLAH

JUDGEMENT

(1.) This revision petition is filed by the plaintiffs in O.S.No.215 of 1993 on the file of the Sub Court, Kattappana. The above suit was filed in 1993 for declaration of their title and recovery of possession of the plaint schedule property, after setting aside gift deed No.394/1959 and for incidental reliefs. The written statement was filed in 1995 and the case was posted in the ready list in January 1995. Meanwhile in December, 1994, defendants filed I.A.No. 1917 of 1994 to amend the written statement. The above amendment was allowed by the learned Munsiff on the ground that no prejudice will be caused to the plaintiffs by amending the written statement and nature of the suit will not be changed. The amendment sought for could not in any way cause any injustice to the plaintiffs. The necessary averments for the present amendment were already made in the earlier written statement itself. Therefore, learned Munsiff found that amendment application can be allowed. This order is challenged mainly on the ground that the plaintiffs were not allowed to file an objection to the above.

(2.) It is the case of the revision petitioners that notice of the petition was given to them on 13-12-1994. On that day the junior advocate appearing for the plaintiffs filed an application for adjournment stating that he has to contact the senior Advocate at Ernakulam and to contact his clients in Tamil Nadu for filing an objection. This was not allowed and the case was posted to the next day for filing objection and hearing and the order was passed without giving an opportunity to the petitioners to file an objection. It is the case of the petitioners that if time for objection was granted they would have been able to prove that additional facts are introduced and amendment cannot be allowed in law. So the major case of the petitioners rest with violation of the principles of natural justice in not allowing them time for filing objection to the amendment application.

(3.) In Rafiq and another v. Munshilal and another ( AIR 1981 SC 1400 ) it was held that party should not suffer for the inaction of his counsel. Here, in fact, an affidavit was filed for adjournment stating that since his party is at Tamil Nadu he cannot file an objection on the next day itself. In Joseph Michael v. Income Tax Appellate Tribunal (1992 (1) KLT SN. 15 page 12) it was held that order passed without giving an opportunity to represent their case is invalid.