Aggrieved by the order dated 12.11.2014 in I.A.No.1676/2014 in A.S.No.40/2009 of 1st Additional District Court, Palakkad, the respondents before the court below have come up with this original petition. By the said order, the court below allowed the petitioners before it to amend the appeal memorandum. O.S.No.480/2006 was filed by the petitioners- plaintiffs before the court below and the defendants in the suit had entered appearance and had filed a counter claim. The suit was dismissed and the counter claim was allowed. The plaintiffs in their wisdom filed two appeals. The defendants' contention was that only one appeal is maintainable. Therefore the plaintiffs withdrew one appeal. The plaintiffs thereafter moved a petition to amend the appeal memorandum with a plea to incorporate the O.P.(C) No.2736/2014 2 grounds against the decree in counter claim. 2. The respondents before the court below filed detailed objections. The court below finding that amendment of the appeal memorandum is necessary for proper adjudication of the case and there is no prejudice caused to the petitioners, allowed the application for amendment.
3. Learned counsel appearing for the petitioners before this Court points out that Order 41 Rule 3 of the Code of Civil Procedure can have no application to the facts of the case and also that the amendment is highly belated.
4. Though the argument may look attractive, it has to be noticed that though strictly Order 41 Rule 3 CPC may not apply as contended by the learned counsel for the petitioners, the court cannot reject an application on that ground alone. Further, the amendment became necessary probably because of the finding in preliminary issue based on which the plaintiffs have compelled to withdraw one appeal. That has happened only in 2014. It is in that context that the prayer for amendment has to be viewed. If O.P.(C) No.2736/2014 3 that be so, the court below was justified in allowing the amendment. No prejudice is caused to the petitioners.
This original petition is without merits and it is accordingly dismissed.
P.BHAVADASAN JUDGE smp