IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 WP(C).No. 34493 of 2009(O) --------------------------------------- OS.383/2008 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONER(S): ----------------------- RAMAKRISHNAN, S/O. VELAYUDHAN, AGED 62 YEARS, NJALOOPPADY HOUSE, KOMBANADU VILLAGE, KRARIYELI KARA, KUNATHUNADU TALUK. BY ADV. MR.A.CHERIAN RESPONDENT(S): ------------------------ 1. VISWANATHAN, S/O. VELUNNI, AGED 68 YEARS, RESIDING AT THOMBRAKUDY HOUSE, KOMBANADU VILLAGE, KARIYELI KARA. 2. JANUKUTTY, W/O. CHANDRAN, AGED 55 YEARS, MUTTUPARA HOUSE, ODAKKALI VILLAGE, PANICHAYAM KARA. 3. SAROJINI, W/O. AYYAPPAN AREETHATTIL HOUSE, KOMBANADU VILLAGE, PANIYELI KARA. 4. RAJI, W/O. CHELLAPPAN, AGED 45 YEARS, RESIDING AT MULLASSERIL KOMBANADU VILLAGE, PANAMKUZHY. 5. REMADEVI, W/O. SURESH, VADAVOOR HOUSE, (THOMBRAKUDY), KOMBANADU VILLAGE, KOMBANADU KARA. R1 TO R5 BY ADV. MR.JOHN K.GEORGE, MR.K.S.ARUN KUMAR . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 34493/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT FILED BEFORE THE MUNSIFF COURT AT PERUMBAVOOR IN O.S.383/2008. EXT.P2: COPY OF THE PETITION FOR THE APPOINTMENT OF A COMMISSION FOR LOCAL INSPECTION AS I.A.3117/2008. EXT.P3: COPY OF THE COMMISSION REPORT IN I.A.3117/2008. EXT.P4: COPY OF THE PROSECUTION PETITION AS I.A.662/2009 IN THE MUNSIFF COURT AT PERUMBAVOOR FILED IN OS.383/2008. EXT.P5: COPY OF THE PETITION FOR POLICE PROTECTION AS I.A.663/2009 IN THE MUNSIFF COURT AT PERUMBAVOOR. EXT.P6: COPY OF THE AMENDMENT APPLICATION FILED BY THE RESPONDENT/DEFENDANT IN THE MUNSIFF COURT AT PERUMBAVOOR. EXT.P7: COPY OF THE OBJECTION TO THE AMENDMENT APPL. FILED BY THE PETITIONER/PLAINTIFF. EXT.P8: COPY OF THE ORDER GRANTING AMENDMENT PASSED BY THE MUNSIFF COURT AT PERUMBAVOOR. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.34493 OF 2009 -------------------------------- Dated this the 22nd day of January 2010 ---------------------------------------------------------- JUDGMENT Petitioner is the plaintiff in O.S No.383 of 2008 on the file of Munsiff Court, Perumbavoor. Suit is one for declaration of right of easement over a pathway and for injunction. The pathway is described as 'B' schedule, having a width of three meters and length of 25 meters. Suit claim was resisted by the respondents/defendants filing a written statement in which the description of the plaint 'B' schedule pathway was disputed. Among other contentions, the respondents contended that the pathway is having only a width of 7 to 7.5 feet. However, later, respondent moved an application for correction of the width of 'B' schedule pathway by deleting the width stated earlier incorporating a statement that the pathway is having only 5 to 5.2 feet. That amendment was asked for, according to the defendant, on the basis of the actual determination of the width in the local inspection conducted by the advocate commissioner on the basis of his commission application. Though the W.P.(C).No.34493 OF 2009 Page numbers amendment was objected to by the plaintiffs, the learned Munsiff allowed that amendment vide Ext.P8 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner. What was specifically admitted by the defendant as the width of the 'B' schedule pathway in his written statement, by way of amendment, was sought to be retracted and that was allowed by the learned Munsiff vide Ext.P8 order without considering the legal principles applicable is the submission of the learned counsel for the petitioners/plaintiffs. What is sought for is only a correction of the width which was wrongly stated in the written statement filed earlier and the correction so sought for is supported by the subsequent report of the advocate commissioner is the submission of the learned counsel for the respondent. Perusing Ext.P8 order with reference to the submissions made by the counsel and also the facts and circumstances presented, I find, the court below has not considered the merit of the W.P.(C).No.34493 OF 2009 Page numbers amendment sought for in accordance with the principles applicable in considering whether such an amendment is permissible or not. Order 8 Rule 5 of the Code of Civil Procedure specifically states that whatever is not specifically denied by the defendant in his written statement shall be deemed to have been admitted. So much so, the very vital question involved in the present case related to the width of the pathway when its existence was not disputed. True, claim of right of easement canvassed by the plaintiffs is disputed by the defendants. But even an incohate right which has not matured into a prescriptive right can be set forth to sustain the relief of injunction is not open to doubt. But where a declaration of easement is claimed, necessarily, the pathway in respect of which such easement is canvassed has to be identified and proved with precision for the grant of that relief. So much so, where the defendant in his written statement has categorically stated that the width of the pathway is 7 to 7.5 feet, at a later stage he cannot be permitted to canvass that the pathway is having only a lesser width on the basis of the commission report or any W.P.(C).No.34493 OF 2009 Page numbers other material. The learned counsel for the plaintiffs has also brought to my notice that in the previous commission report the advocate has reported that the pathway is having approximately a width of 10 feet. So the evidentiary value of the statements made by the commissioner in his two reports, even if they are conflicting, with respect to the width of the pathway is a matter to be appreciated in the trial of the suit. The commissioner in his second report expressed an opinion that the width of the pathway is less, even assuming it to be so, is not a ground enabling the defendant to withdraw the admission made earlier in his written statement as to the width of the pathway. Setting aside Ext.P8 order, I direct the court below to consider the amendment application moved by the defendant afresh and pass appropriate orders taking note of the observations made above and in accordance with law. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv