IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 WP(C).No. 35335 of 2009() ----------------------------------- OS.250/2007 of MUNSIFF MAGISTRATE, SULTHAN BATHERI .................... PETITIONER(S): ------------------------ 1. R.KRISHNANKUTTY NAIR, S/O. RAMAN NAIR, NELLAMPURATH HOUSE, KUPPADI, VILLAGE, NOOLPUZHA POST, S. BATHERY TALUK, WAYANAD DIST. 2. GIRISH BABU, S/O. KRISHNANKUTTY NAIR, RESIDING IN DO..DO... BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S): -------------------------- K.G. PADMANABHAN, S/O. GOPALAPILLA, PURAMANA HOUSE, POST NOOLPUZHA, KALLOOR VILLAGE, S. BATERHY TALUK, WAYANAD. ADV. SRI.E.G.GORDEN SRI.S.K.PREMJITH MENON SRI.D.MANEKSHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.35335/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS.250/07 MUNSIFF MAGISTRATE'S COURT, SULTHAN MATHERY DT. 15.11.07. P2:- COPY OF THE PARTITION DEED DTD. 5.1.05. P3:- COPY OF THE REVENUE RECEIPT DTD. 1.7.07. P4:- COPY OF THE TAX RECEIPT DTD. 1.7.08. P5:- COPY OF THE COMMISSION REPORT DTD. 21.1.2009. P6:- COPY OF THE IA. NO.662/08 IN OS. 250/07, MUNSIFF MAGISTRATE SULTHAN BATHERY. P7:- COPY OF THE ORDER IN IA. 663/08 IN OS. 250/07 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, SULTHAN BATHERY. TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J --------------------------- W.P.(C).No.35335 OF 2009 ----------------------------------- Dated this the 18th day of March, 2010 J U D G M E N T Aggrieved by the order dismissing the application for amendment of the plaint by the court below, the petitioner has approached this court under Article 227 seeking relief. 2. O.S.250/07 was instituted by the petitioner against the respondents. Suit was one for injunction seeking a decree of permanent prohibitory injunction restraining the respondents from interfering with the use of B schedule pathway. According to the plaintiff it is the only way for ingress and egress to her property. 3. The defendants entered appearance. A commission was take out and the commission filed a report with sketch which was produced as Ext.P5 series. 4. Based on the sketch and the report of the commissioner the plaintiff sought for amendment of the plaint. It is seen that amendment was in respect of plaint A schedule property shown by the plaintiff and also eastern boundary of the property. The W.P.(c) No.35335/09 2 court below has found that the extent of A schedule property is totally irrelevant for deciding the suit and so also boundary. The court formed the opinion that it was an attempt to create evidence for another suit. Accordingly the petition was dismissed. 5. The learned counsel appearing for the petitioner pointed out that the court below was not justified in dismissing the petition. Amendment sought was with reference to the Commissioner's report and tax receipt was produced by the petitioner and ought have been allowed. 6. There s little merit in the contention. The issue involved in the suit was relating to the right of a path way shown as B schedule, in the Commissioner's report and plan. The claim of the plaintiff was to use the way by easement right that means the property through which B schedule property runs must be owned by the defendants as rightly pointed out by the court below The extent of the plaint schedule property has no relevance. Further amendment sought for has nothing to do with the issue in the suit. The extent of A schedule property is not subject matter of the suit at all. If there is any grievance for the petitioner regarding the commissioner's report the petitioner will W.P.(c) No.35335/09 3 be at liberty to approach in appropriate proceedings. 7. No irregularity or impropriety is seen in the order passed by the court below. This petition is without merits and is accordingly dismissed. P. BHAVADASAN, JUDGE. Sou.