IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 2736 of 2009(A) ----------------------------------- OS.358/2007 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): ----------------------- SREENIVASAN, S/O.SREEDHARAN NAIR, VATHAPPILLIL, VENDUVAZHI KARA, KOTHAMANGALAM VILLAGE, ERNAKULAM DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): ------------------------ 1. SATHI, W/O. BALAKRISHNAN NAIR,MALIKAYIL VENDUVAZHI KARA, KOTHAMANGALAM VILLAGE, ERNAKULAM DISTRICT. 2. VIJAYASREE D/O.BALAKRISHNAN NAIR, MALIKAYIL, VENDUVAZHIKARA,KOTHAMANGALAM VILLAGE, ERNAKULAM DISTRICT. 3. BIJU,S/O.BALAKRISHNAN NAIR,MALIKAYIL, VENDUVAZHI KARA, KOTHAMANGALAM VILLAGE, ERNAKULAM DISTRICT. 4. MANJUSHA, D/O.BALAKRISHNAN NAIR, MALIKAYIL, VENDUVAZHI KARA, KOTHAMANGALAM VILLAGE ERNAKULAM DISTRICT. R1 TO R4 ADV. SRI.PEEYUS A.KOTTAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 2736/2009- A APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN 0.S.358/2007. P2 COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS. P3 COPY OF THE SURVEY COMMISSION REPORT DATED 1-4-2008. P4 COPY OF THE SKETCH FILED BY THE SURVEY COMMISSION ALONG WITH EXHIBIT P3 REPORT. P5 COPY OF THE I.A 3519/2008 SEEKING AMENDMENT TO THE PLAINT FILED ON 25-10- 2008. P6 COPY OF THE ORDER DATED 1-12-2008 PASSED IN I.A 3519/2008. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ sts P.S.TO JUDGE HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.2736 OF 2009 ------------------------------- DATED THIS THE 7TH DAY OF OCTOBER, 2010 JUDGMENT Ext.P6 order dated 1/12/2008 in I.A.No.3519/08 in O.S.No.358/07 of the Munsiff's Court, Muvattupuzha is under challenge. Petitioner is the plaintiff in the suit. Respondents are the defendants. The suit was filed for declaration of title and possession of the plaint schedule property. The extent of property scheduled in the plaint is 2 cents and 81 sq. metres comprised in Sy.No.1298/6. Since the suit is for declaration of title, the survey measurement was conducted. Exts.C3 and C3(a) are the commission report and survey plan. Commissioner reported in Ext.C3 that the survey number and extent of the property claimed in the suit is 2.600 cents in Sy.No.1298/7. The Commissioner also reported that the plaintiff is in possession of another extent of 950 sq. links of land in Sy.No.1312/7-B, 600 sq. links in Sy.No.1312/7- A in addition to 2.600 cents. The Commissioner also located the -2- WP(C).No.2736/09 southern property as belonging to the respondents. The extent of the southern property is 10.250 cents in Sy.No.1312/7-A. 2. Finding that there is change in the survey number, the plaintiff filed IA.1356/08 to correct the survey number of the plaint schedule property. As per the amendment the plaint schedule property is 2 cents and 81 sq. metres comprised in Sy.Nos.1312/7- A and 1312/7-B. Later the court recorded the oral evidence adduced by both sides. On 24/10/08 the plaintiff filed I.A.No.3519/2008 for amendment. Now the amendment sought for is in accordance with Ext.C3(a) survey plan. Plaintiff wanted to amend the plaint stating that in addition to the property having title over 2.600 cents, the other two items shown in Ext.C3(a) plan found to be reported by the Commissioner in the possession of the plaintiff, are sought to be added. Now the plaintiff wanted declaration of title in respect of 2.600 cents of land in addition to that he claims possessory title in respect of the additional extent noted by the Commissioner. -3- WP(C).No.2736/09 3. Learned Munsiff observed that if the proposed amendment is allowed, plot Nos. 1 to 3 in Ext.C3(a) survey plan will become the plaint schedule property and the reliefs sought for in the plaint will be for declaration of plaintiff's title and possession over plot No.1 and declaration of plaintiff's possession over plot Nos. 2 and 3. 4. The suit was originally filed for declaration of title and possession over 2 cents of land. Subsequetly, the plaint was amended and the extent is changed as 2cents and 81 sq. meters. At that time Ext.C3a plan shows that in addition to 2.600 cents of land the plaintiff is in possession of 1.55 cents more. As per the report, the total extent found to be in the possession of the plaintiff is 4.15 cents. Ext.C3(a) plan is available at the time when the petitioner moved for the lst amendment. At that time he has no case that the extent of property has to be amended by filing necessary petition seeking declaration of possession. Learned Munsiff found that from the averments in IA.1356/08 it is clear that the plaintiff -4- WP(C).No.2736/09 came to know the actual survey numbers of the plaint schedule property before filing IA.No.1356/08 and before the commencement of the trial. He was having clear idea regarding the survey numbers and extent mentioned in Ext.C3(a). The court found that after amending the plaint there is no justification for the plaintiff in seeking further amendment in accordance with Ext.C3 (a) survey plan. The court below found that such an attempt is only to overcome the evidence which had already been adduced. The court also referred to the proviso to Order VI Rule 17 CPC which mandates that no application for amendment shall be allowed after the commencement of the trial, unless the court is satisfied that in spite of due diligence, party could not have raised the matter before the commencement of trial. I have gone through Ext.P5 petition for amendment. There is no averment to the effect that the application could not be filed before commencement of the trial, in spite of due diligence. Ext.P6 order passed by the learned Munsiff dismissing the application for amendment is therefore -5- WP(C).No.2736/09 justified in all respects. No valid grounds are made out for interference in the writ petition filed under Article 227 of the Constitution of India. Writ Petition is therefore dismissed. The learned counsel for the plaintiff submitted that by an oversight proper application was not filed inserting necessary averments and reliefs, when IA.No.1356/08 was filed. Learned counsel submitted that in fact the amendment sought for in the present petition could have been inserted in the earlier petition filed as I.A.1356/08. But by an omission on the part of the counsel, the amendment application could not be filed at the right time, even though the Commissioner in Ext.C3(a) plan reported that the plaintiff is in possession of an extent of 4.15 cents of land including 2.600 cents of land for which he has title. The learned counsel therefore sought permission of this Court to withdraw the suit for the purpose of filing a fresh suit with comprehensive prayer. If such an application is filed before the Munsiff's Court, the learned -6- WP(C).No.2736/09 Munsiff shall consider that application on merits and pass appropriate orders. Sd/- HARUN-UL-RASHID, Judge. kcv.