IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 WP(C).No. 21517 of 2010(O) -------------------------- OS.1925/1990 of III ADDL.M.C.EKM (RENT CONTROL) .................... PETITIONER: --------------- THE FACT MANAGERIAL STAFF HOUSE CONSTRUCTION CO-OPERATIVE SOCIETY E.243, SANTHY NAGAR, SOUTH KALAMASSERY P.O., KALAMASSERY, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.T.K.VENUGOPALAN RESPONDENTS: --------------- 1. MOHAMMED ALI, S/O.LATE AHAMMUNNI, KUDILIPARAMBIL, RESIDING AT ETTUKALIPARAMBIL NJALAKAM KARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK-682 028. 2. AZEEZ, S/O.LATE AHAMMUNNI, KUDILIPARAMBIL, RESIDING AT ETTUKALIPARAMBIL NJALAKAM KARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, PIN-682 028. 3. K.M.ABUBACKER, S/O.MUHAMMED, RESIDING AT KALLEPURAM HOUSE, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, PIN-682 028. 4. SUNITHA, D/O.K.M.ABUBACKER, RESIDING AT KELLEPURAM HOUSE, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, PIN-682 028. 5. SHAHUL HAMEED, S/O.K.M.ABUBACKER, RESIDING AT KALLEPURAM HOUSE, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, PIN-682 028. 6. SENITHA, D/O.K.M.ABUBACKER, RESIDING AT KALLEPURAM HOUSE, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK-682 028. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------- WP (C) No. 21517 of 2010 ------------------------------------- Dated this the 12th day of July, 2010 J U D G M E N T ........................... Defendant in OS No. 1925/90 of Munsiff's Court, Ernakulam is the petitioner. He challenges order on IA No. 10306/04 allowing amendment of description of plaint schedule. 2. Respondents filed the suit for recovery of possession of 7.750 cents in Survey No. 1096/2/1. Suit was dismissed for lack of proper identity of disputed property. Respondents challenged judgment and decree in AS No. 50/00. That resulted in Exhibit P1, judgment dated 29.6.02 remanding the case with liberty to the respondents get the property identified. Thereafter Advocate Commissioner inspected property and submitted report and plan. Respondents filed IA 10306/04 for amendment of plaint to correct the northern and western boundary of suit property 2 WP (C) No. 21517 of 2010 in the schedule which according to respondents, interchanged while preparing the plaint schedule. That application was allowed by the learned Munsiff, which petitioner challenged in WP(C) 35345/04. This Court by judgment dated 15.06.06 set aside the order since it was not a speaking order. IA 10306/04 was remitted to the learned Munsiff for fresh disposal. Thereafter learned Munsiff passed a speaking order allowing the application. That order is under challenge. It is contended that application is without bonafides and is highly belated. It is also contended that the application is not maintainable in view of the proviso to rule 17 of order VI of the Code of Civil Procedure(for short “ the Code”) 3. It is about 2 years after Exhibit P1 judgment dated 29.6.02 remanding the case to the Court of learned Munsiff that respondents filed IA 10306/04 seeking amendment. But it is seen that in the meantime Advocate Commissioner inspected the property and submitted report where 3 WP (C) No. 21517 of 2010 northern and western boundary of the property has been correctly identified and stated. It is to make the plaint schedule description in tune with the said descriptions in Exhibit C1 and C1 (a) that amendment is sought for. I also find that amendment sought for is only regarding the northern and western boundary of suit property which according to the respondents interchanged while preparing the plaint schedule. Amendment does not in any way affect identity of the property or change character and nature of the suit. Mere fact that in the circumstances stated above there was some delay in respondents filing the application, is not sufficient to deny the relief sought for in the application. 4. So far as the application for the proviso to Rule 17 of Order VI of the Code is concerned amendment was sought for after the case was remitted to the Court of learned Munsiff for fresh disposal after giving respondents opportunity to identify the property. It is 4 WP (C) No. 21517 of 2010 while the suit was thus pending before learned Munsiff after remanding that request for amendment was made. As such I am not persuaded to think that proviso to Rule 17 of order VI of the Code applied. Having regard to the facts and circumstances stated above I do not find reason to interfere with the order under challenge. Resultantly this writ petition fails and it is dismissed. THOMAS P. JOSEPH, JUDGE. rkc