Court's discretion allows amendments even if time-barred, provided they don't change the suit's nature and serve justice.

JUDGMENT :

MURALI PURUSHOTHAMAN, J.

This original petition is filed against Ext. P7 order dated 03.11.2020 in I.A. No.2 of 2020 in O.S. No.926 of 2008 on the files of the Principal Munsiff Court, Neyyattinkara.

2. The petitioner herein is the defendant and the respondent is the plaintiff, in the suit.

3. The respondent sold 6.14 Ares of property along with building thereon to the petitioner as per sale deed No.850 of 2008 of SRO, Vellarada. Thereafter, the respondent filed the aforesaid suit against the petitioner to declare the said sale deed as void, for the reason that the same is tainted and vitiated by coercion and duress. According to the respondent, the petitioner and her relatives had coerced her to execute the aforesaid deed and she did not receive any consideration for the same. Ext. P1 is the copy of the plaint.

4. The respondent entered appearance and filed Ext. P2 written statement traversing the averments in the plaint.

5. On 02.07.2009, the respondent filed Ext. P3 amendment application to delete the prayer for declaring the sale deed as null and void. Ext. P3 application was dismissed by the trial court by Ext. P4 order dated 16.07.2009 stating that the application has been made only to avoid payment of court fee as per Section 40 of the Kerala Court Fees and Suit Valuation Act,1959.

6. Later, on 30.09.2020, the respondent filed Ext. P5 amendment application in Ext. P1 suit to incorporate the prayer for setting aside sale deed No.850 of 2008 and payment of court fee for the same.

7. The petitioner filed Ext. P6 counter affidavit to Ext. P5 application wherein it is contended that the respondent is trying to introduce a prayer which is apparently barred by law of limitation. It was also contended that if the amendment application is allowed, the same would take away the valuable right accrued on the petitioner and introduction of new relief would be inconsistent with the original relief.

8. The learned Munsiff, by Ext. P7 order, allowed Ext. P5 application on terms. The learned Munsiff found that the respondent being the executant of the deed and wants to challenge the same, she has to sue for its cancellation and has to pay court fee for that relief and it is for the said purpose the amendment is sought. It was also observed that the factual matrix as regards the relief of cancellation of the deed is already on record and the same is the issue between the parties. The learned Munsiff also held that the amendment proposed does not alter the nature of the suit and it only supplements the present case and does not supplant or introduces any new factual or forensic factor. It was also found that the proposed amendment is necessary for resolving the real question in controversy between the parties to the suit. Thus, the amendment application was allowed on payment of cost of Rs.750/- to compensate the petitioner for the delay in filing the application.

9. Ext. P7 order is impugned in this original petition contending that Ext. P5 application is per se barred by law of limitation. It is also contended that the finding of the learned Munsiff that the proposed amendment will not alter the nature of the suit is erroneous. Another contention is that the learned Munsiff erred in finding that the proposed amendment is necessary for resolving the real question in controversy between the parties to the suit. It is contended that by allowing Ext. P5 application, the trial court acted in derogation to the mandate under Order 6 Rule 17 and Order 7 Rule 11(d) of the Code of Civil Procedure . According to the petitioner, Ext. P5 application is mala fide and an abuse of proces