A transposed defendant may seek to amend the plaint based on specific case facts, rather than a blanket prohibition against such amendments.

JUDGMENT

Dated this the 03^rd day of June, 2025

This O.P.(C) has been filed by the petitioner, who is plaintiff No.5 in O.S.No.100 of 1999 on the file of the Subordinate Judge's Court, Attingal, challenging the order dated 22.07.2024 dismissing the amendment application viz., I.A.No.13 of 2023 filed by him in the said suit. Respondents are the counter petitioners in the I.A. and defendants in the suit.

2. The petitioner had also filed an application I.A.No.7 of 2023 in the O.S., seeking to appoint a receiver, which was dismissed by the Sub Court challenging which the applicant had filed FAO No.49 of 2024 which was heard along with this O.P.(C) and is disposed of vide a separate judgment.

3. A decree had earlier been passed in O.S.No.100 of 1999, which was challenged before this Court by the petitioner by filing RFA Nos.23 of 2021 and 145 of 2021. This Court had vide common judgment dated 08.11.2021, disposed of RFAs inter alia taking note that the decree had been rendered based on concession made by the parties relinquishing some of the reliefs included in the suit and by granting other reliefs in a representative suit instituted with leave of the court under Order 1 Rule 8 of the Code of Civil Procedure (CPC). It was noted that the petitioner, who is the aggrieved person in the said RFAs, had not been a party to the proceedings and that he had challenged the decree terming it to be a collusive one. This Court held that in a representative suit instituted with leave of the court under Order 1 Rule 8 CPC, it is not permissible to pass a decree based on concession made by the parties, unless there is compliance of the mandate of Order 1 Rule 8 (4) CPC. Holding thus, the decree was set aside and the matter was remanded back to the trial court for fresh disposal. It was also directed that the trial court shall permit the petitioner, who was the appellant in the RFAs to be impleaded as an additional defendant and the suit was directed to be disposed of in accordance with law.

4. After the remand, petitioner had initially got himself impleaded as an additional defendant and later transposed himself as additional plaintiff No.

5. Thereafter, the petitioner filed I.A.No.13 of 2023 seeking to amend the plaint. The principal reason stated in the affidavit accompanying the amendment petition was that this Court had permitted him to be impleaded and amendment has become necessary, inter alia for the reason that the suit was filed as early as in 1999. It was also contended that amendment is necessary to decide the real question involved and the controversy between the parties. That no injustice or prejudice will be caused to the other side if the amendment is allowed and that many incidents that have happened subsequent to the institution of the suit in the year 1999 had to be brought to the notice, were also stated as a reason for the amendment. That the amendment will not change the character of the suit and the amendment has become necessary since plaintiffs 2 to 4 are no more was also pointed out.

5. The learned Sub Judge, after hearing both sides, dismissed the application relying on the dictum laid down in Aliyamma @ Leelamma and others v. Kunjamma John and others [2021 (2) KHC 161] inter alia holding that a stranger cannot amend a plaint verified by a third party and that once a person is transposed from the status of a defendant to the plaintiff, his written statement can be considered as his plaint. Though the petitioner had contended that in a scheme suit, a different yardstick ought to be applied, the same was tu