IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 WP(C).No. 30883 of 2009(O) ----------------------------------------- I.A.496/2008 IN OS.394/1997 of MUNSIF COURT, KUTHUPARAMBA .................... PETITIONER(S): ------------------------ 1. KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. 2. ASSISTANT EXECUTIVE ENGINEER, WATER SUPPLY SUB DIVISION, KERALA WATER AUTHORITY, MATTANNUR. BY ADV. SMT.S.AMBIKA DEVI RESPONDENT(S): -------------------------- 1. K.V. ABDULLA, KOYITTY HOUSE, CHAVASSERI AMSOM, VELIYAMBRA DESOM, THALASSERY TALUK. 2. N.V. SURENDRAN, NHALIVALAPPIL HOUSE, CHAVASSERY AMSOM, DESOM, THALASSERY TALUK, P.O.CHAVASSERY. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 30883/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.394/1997. EXT.P2 & P2(a): COPY OF THE COMMISSIONER'S REPORT. EXT.P3: COPY OF THE AMENDMENT PETITION I.A.496/08 IN O.S.394/1997. EXT.P4: COPY OF THE ORDER PASSED THEREIN BY THE MUNSIFF COURT, KUTHUPARAMBA DATED 10/07/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs HARUN-UL-RASHID,J. ------------------------------- W.P.(C).NO. 30883 OF 2009 ------------------------------- DATED THIS THE 16TH DAY OF NOVEMBER, 2010 JUDGMENT Kerala Water Authority and Assistant Executive Engineer, Water Supply Division, Kerala Water Authority are the petitioners herein. They are the plaintiffs in O.S.No.394/97 on the file of the Munsiff's Court, Kuthuparamba. The suit was filed for a declaration that plaint A schedule property is entitled to have lateral support rendered by plaint B schedule property, for damages and for restoration of plaint B schedule property to its original position for providing lateral support to the plaint A schedule property. 2. It is averred in the paint that the plaint schedule property belongs to the Kerala Water Authority and the adjacent plaint B schedule property belongs to the defendants. This writ petition is filed challenging Ext.P4 order passed by the learned Munsiff dismissing the application filed for amending the plaint. -2- WP(C).No.30883/2009 Defendants have filed a written statement denying the plaint averments and also disputed the identity of the plaint schedule properties. At the instance of the plaintiffs, a commissioner was deputed for identification of the property. The commissioner submitted a plan and report on 13/12/2007. In the plan attached to the report the commissioner marked plots A, E and F and plots B, C and D as the properties belonging to the plaintiffs and defendants respectively. In the light of the commission report and plan , the plaintiffs wanted to amend the plaint in order to correct the schedule of the property. The commissioner pointed out that plots E and F also belong to the plaintiff-Kerala Water Authority. But in the plaint plots E and F are shown as the property of the defendants. Thus, according to the plaintiffs, the basic mistake committed by them is as a result of the misconception of fact. Only when the property was properly identified by the Commissioner with the help of a Surveyor, the plaintiffs came to know about the wrong description of the property. It is said that the plaintiff drafted on a -3- WP(C).No.30883/2009 mistaken belief that the area from where the earth was removed belongs to the lst defendant. In short, on identification of the property the plaintiffs could understand that plot E in the plaint from where the earth was removed forms part of the plaintiffs' property. It is also stated that there are certain typing errors and grammatical mistakes in the plaint. That also have to be corrected. In order to correct such mistakes also, the plaint is to be amended. The defendants in the suit filed a counter affidavit opposing the application for amendment. 3. The suit was filed for the reliefs referred above. According to the plaintiffs, plaint B schedule property belongs to the defendants and it acts as a lateral support to the plaint A schedule property. It is said that the defendants without any authority had removed earth from the plaint B schedule property and thus the lateral support of plaint A schedule property has been lost and therefore the suit was instituted. 4. In fact, the need for amending the plaint is -4- WP(C).No.30883/2009 necessitated due to the identification of the property. The Commissioner found that plots A, E and F are belonging to the plaintiffs as per their title deeds. The plaintiffs were under the impression that plots E and F belongs to the defendants and that plot E was provided lateral support to the plaint A schedule property. The Commissioner also identified the property of the lst defendant as plots B, C and D. The plaintiffs could understand that the plot E in the plaint from where earth was removed forms part of the plaintiffs' property. Therefore, there is every justification for the plaintiffs to move the court for amendment. They have filed the application for amendment within five months from the date of submission of the report by the Commissioner. It is also stated in the application for amendment that the plaintiffs have noticed certain typing errors and grammatical mistakes in the plaint; which also needs correction. 5. The amendment application was dismissed by the Munsiff's Court. In my view, the approach of the court below to -5- WP(C).No.30883/2009 the question of amendment is patently wrong. The court below did not examine the scope of the suit and the proposed amendment. In fact the amendment sought for is a consequential amendment based on the identification of the property by the Commissioner. Going by the contentions of the parties, if the amendment is not proposed by the plaintiffs, the continuation of the suit as such will not serve any purpose at all. The plaintiffs informed the court that the plaint was drafted on the mistaken belief that the area from where the earth was removed belongs to the defendants. Now it is found that the said area belongs to them. Therefore, there is no justification for blaming the plaintiffs in filing the application for amendment. 6. The court below observed that the proposed amendment runs into pages and each and every sentences are sought to be amended. In fact the amendment proposed is very limited. But the drafting of the amendment application and the number of paragraphs to be amended would give an impression to the court that almost all sentences are sought to be amended from -6- WP(C).No.30883/2009 the very beginning till the end. In fact the court below misunderstood the scope of the amendment sought for. The petition was drafted in such a way which give arise to such an impression. In fact the amendment will not cover the entire pleadings. This was not taken not of by the court below. I do not find any justification for holding that the proposed amendment if allowed will change the nature and character of the suit. If the amendment is not proposed and sought for, the very purpose of filing the suit and the prayer in the plaint will become infructuous. The court also refused to allow the application for amendment for the reason that the proposed amendment, if allowed, will have the effect of withdrawing an admission. In fact the plaint is proceeded under the belief that plots E and F also belong to the defendants and plot E is providing lateral support to plaint A schedule property. Only when the Commissioner submitted a report and plan, the plaintiffs came to know about th real nature, character and title of plots E and F shown in the plaint. In fact the plaint is proceeded as -7- WP(C).No.30883/2009 if these two plots belong to the defendants. It cannot be said that the said plea is an admission of title. When the property was identified and when it was found that plot E belongs to the plaintiffts, the only course open to the plaintiffs is to file an application for amendment. Therefore, the reason stated that the proposed amendment will change the nature and character of the suit and that the same will have the effect of withdrawing the admission etc. is factually incorrect, illegal and unsustainable. 7. The Apex Court and this Court in a catina of the decisions, laid down the principles that the amendment application shall be considered very elaborately. There are several occasions in cases where amendments are allowed at the appellate stage and second appellate stage, if circumstances so warrant. In this case amendment was proposed during the trial stage itself, that too within a reasonable time. I find that Ext.P4 order dismissing the application for amendment is unsustainable in law and if the impugned order is sustained, the same will result in serious -8- WP(C).No.30883/2009 prejudice and injustice to the plaintiffs in the suit. 8. In the result, Ext.P4 order is set aside. The application for amendment (I.A.No.496/2008) is allowed. The plaintiffs shall carry out the amendment within three weeks. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.