IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 OP(C).No. 399 of 2011(O) ------------------------------------ ( IN IA 117/2011 IN OS.160/2007 of MUNSIFF-MAGISTRATE COURT,PATTAMBI ) .................... PETITIONER -------------------- VENUGOPALAN,AGED 48 YEARS, S/O.PALAPPATTTA AMBUJAKSHI AMMA,VALLAPPUZHA AMSOM DESOM,OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.SUMODH MADHAVAN NAIR RESPONDENT(S): -------------------------- J & P CONSTRUCTIONS,REPRESENTED BY JAMES JOSEPH,S/O.P.C.JOSE,42 YEARS,VALLAPPUZHA AMSOM DESOM,VALLAPPUZHA.P.O,-679336,OTTAPALAM TALUK,PALAKKAD DISTRICT. BY ADVS. SRI.BABU CHERUKARA SMT.ROSAMMA MATHEW SRI.ANZAR BASHEER SRI.P.ANTO THOMAS THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts O.P.(C)NO.399/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN O.S.NO.160/2007 DATED 19/11/2007 FILED BY THE PETITIONER BEFORE THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI. P2 COPY OF THE COMMISSION REPORT DATED 26/11/2007 IN O.S.NO.160/2007 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI. P3 COPY OF THE COMMISSION REPORT DATED 25/1/2008 IN O.S.NO.160/2007 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI. P4 COPY OF THE COMMISSION REPORT DATED 12/2/2008 IN O.S.NO.160/2007 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI. P5 COPY OF THE COMMISSION REPORT DATED 13/2/2008 IN O.S.NO.160/2007 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI. P6 COPY OF THE COMMISSION REPORT DATED 18/2/2008 IN O.S.NO.160/2007 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI. P7 COPY OF THE COMMISSION REPORT DATED5/5/2010 IN I.A.NO.512/2010 IN O.S.NO.160/2007 ON THE FILE OF THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI. P8 COPY OF THE APPLICATION FOR AMENDMENT OF THE PLAINT (I.A.NO.117/2011) DATED 15/1/2011 FILED BY THE PETITIONER IN O.S.NO.160/2007 BEFORE THE MUNSIFF MAGISTRATE'S COURT PATTAMBI. P9 COPY OF THE OBJECTION DATED 19/1/2011 SUBMITTED BY THE RESPONDENT TO EXT.P8 BEFORE THE MUNSIFF MAGISTRATE'S COURT, PATTAMBI. P10 COPY OF THE ORDER DATED 22/1/2011 IN I.A.NO.117/2011 IN O.S.NO.160/2007 PASSED BY MUNSIFF MAGISTRATE'S COURT, PATTAMBI. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE SKETCH SHOWING THE QUARRY. R1(B) COPY OF THE LICENCE ISSUED BY THE VALLAPPUZHA GRAMA PANCHAYAT. R1(C) COPY OF THE CRUSHER METAL UNIT LICENCE DO. DO. R1(D) COPY OF THE DOCUMENT NO.1348/2009 OF PATTAMBI SUB REGISTRY. R1(E) COPY OF THE DOCUMENT NO.2281/08 OF PATTAMBI SUB REGISTRY. R1(F) COPY OF THE LICENCE ISSUED BY SECRETARY VALLAPPUZHA GRAMA PANCHAYAT. /TRUE COPY/ P.A.TO.JUDGE sts HARUN-UL-RASHID, J. ------------------------ O.P.(C).No.399 Of 2011 ---------------------- Dated this the 21st day of February, 2011. J U D G M E N T Ext.P10 order passed by the Munsiff-Magistrate Court, Pattambi in I.A.No.117/2011 in O.S.No.160/2011 is under challenge. The petitioner is the plaintiff in the said suit. Suit was filed for permanent prohibitory injunction restraining the defendant and his men from conducting quarrying operations in the plaint schedule properties. At the instance of the plaintiff commissioner was deputed on several occasions and the commissioner has filed reports. Petitioner submitted Ext.P8 application for amendment of the plaint so as to make certain changes in the schedule. According to the plaintiff the amendment was necessitated in the light of the new information obtained by him and in the light of the details provided by the commissioner in his report. 2. The petitioner/plaintiff submits that the defendant was conducting two quarries in the plaint schedule properties, subsequently, he purchased the adjacent land and started conducting other quarries as well. Therefore the petitioner sought to amend for deletion of 'two quarries' mentioned in the ::2:: O.P.(C).No.399 Of 2011 plaint and in its place 'defendant's quarries'. Changes are sought to be introduced in the survey numbers as well. According to the plaintiff the amendment was necessitated due to the subsequent developments. 3. The learned Munsiff heard both sides. The learned Munsiff in the order, referred the postings of the case and also about the listing of the case for trial. After referring to the dates the learned Munsiff observed that in spite of repeated opportunities the plaintiff did not take steps to amend the plaint. Therefore the learned Munsiff observed that the application is filed to protract the matter. The amendment application was dismissed by Ext.P10 order. 4. The learned counsel for the petitioner/plaintiff submits that thee was no proper consideration of I.A.No.117/2011 for amendment on merits and that the petition was happened to be dismissed for the sole reason that the same is belated. The learned counsel brought to the notice of this Court the decision reported in Surendar Kumar Sharma v. Makhan Singh [2009 KHC 5196 (SC)]. Referring to the amendment application the Apex Court held that belated application for amendment is not liable to be rejected merely on the ground of delay if the court ::3:: O.P.(C).No.399 Of 2011 finds that by allowing the application real controversy between the parties may be resolved. In this case the learned Munsiff has not enquired into the question as to whether the amendment is necessary for resolution of the real controversy between the parties. The application was dismissed stating that it was filed belatedly and therefore there is no bonafides. In fact, there was no decision as to whether the amendment proposed to be made are necessary for proper adjudication of the controversy between the parties. 5. In the circumstances, this Court is of the view that the matter requires reconsideration. Ext.p10 order is therefore, set aside. It is open to the parties to raise their respective contentions before the learned Munsiff. The court below shall decide the case after considering the merits of the contentions raised by the parties. This Court direct the learned Munsiff to hear and dispose of I.A.No.117 of 2011 on merits afresh in accordance with law, before closing of the courts for the summer vacation. The O.P is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-