JUDGMENT

Aggrieved and displeased with Ext.P4 order passed in I.A. No.4/2022 in O.S.No.137/2017 by the Court of the Principal Subordinate Judge, Kottayam, the plaintiff in the suit has filed the original petition. The respondent is the defendant in the suit.

2. The antecedent facts leading to Ext.P4 order, in a nut shell, are: the petitioner has filed the suit against the respondent for realisation of an amount of Rs.1,18,00,000/- with interest. The suit has been resisted by the respondent through Ext.P1(a) written statement. The suit was listed for trial. The petitioner and three witnesses were examined as Pws 1 to 4 and Exts.A1 to A9 were marked through them. Thereafter, the respondent filed his affidavit in lieu of chief-examination and produced the document evidencing the payment made by the petitioner. The accounts produced by the respondent are not maintained in the ordinary course of business. The accounts are fabricated to suit the respondent’s defence. The petitioner had filed I.A. Nos. 1253 and 1559 of 2019 to direct the respondent to produce the supporting bills, invoices and vouchers pertaining to the accounts produced. The respondent resisted those applications contending that he is maintaining the accounts only in his computer system. The petitioner is in possession of electronic documents, which would prove that the defence of the respondent in the written statement to be false. The electronic documents are in the form of speeches recorded by the petitioner on his mobile phone. The petitioner was advised that the non- production of the said documents have to be explained in the plaint. Accordingly, the petitioner filed I.A. No.4/2022 (Ext.P2) to amend the plaint to incorporate a pleading regarding the electronic documents. The same was objected to by the respondent through Ext.P3 objection. The court below, by the impugned Ext.P4 order, dismissed Ext.P2 application. Ext.P4 is ex-facie illegal, irregular and improper. Hence, the original petition.

3. Heard; Sri.M. Narendra Kumar, the learned counsel appearing for the petitioner and Sri.Santhosh Kumar, the learned counsel appearing for the respondent.

4. The question is whether there is any illegality in Ext.P4 order.

5. The suit was filed in the year 2017, against the respondent for recovery of an amount of Rs.1,18,00,000/-

with interest.

6. The respondent had filed his written statement on

05.01.2018, denying the allegations in the plaint. It is specifically pleaded in paragraph 5 of the written statement that the payments made by the petitioner were towards the price of goods purchased by the petitioner for his villa and apartment projects and the payments narrated in clauses ‘a’ to ‘e’ of paragraph 5 were not towards any loan, but were the price paid for the goods purchased by the petitioner.

7. On the basis of the rival pleadings, the parties went for trial as early as on 09.01.2019. The petitioner and three witnesses were examined as PWs 1 to 4 and Exts. A1 to A9 were marked through them. Then, the suit was adjourned for the evidence of the respondent, who has filed his proof affidavit.

8. It is at this belated stage, the petitioner filed Ext.P2 application to insert the following paragraph in the plaint.

"5 (a) The plaintiff demanded the amount paid by him to the defendant through Mobile No. +1(773)972-3900. The said demand was and the reply given by the defendant are recorded on various dates before the institution of the suit . It is clear from the said voice contained in the Mobile No. +1(773)972-3900 the defendant has admitted the loan transaction between the plaintiff and the defendant. The Mobile Phone to which the plaintiff made the call is owned by the defendant and bearing number 099469 01888. The voice message recorded in Mobile Phone +1(773)972-3900 owned by the plaintiff would clearly indicate that the payments are not made by the plaintiff towards price of goods purchases by the plaintiff for his Villa and apartment project but is a loan transaction.”