IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 WP(C).No. 3340 of 2009(V) ------------------------------------- [OS.NO.128/2005 OF MUNSIFF'S COURT,CHENGANNUR] .................... PETITIONER: ------------------- MAMMEN @ THOMPAN, KURISUMOOTTIL HOUSE, MUNDANCAVU MURI, CHENGANNUR VILLAGE. BY ADV. MR.A.SHAFEEK (KAYAMKULAM). RESPONDENTS: ------------------------ 1. JOHN VINCENT,KONNAYIL,MUNDANCAVU MURI, CHENGANNUR VILLAGE. 2. JOHN JOHN,KONNAYIL,MUNDANCAVU MURI, CHENGANNUR VILLAGE. 3. JOHN KOSHY,KONNAYIL,MUNDACAVU MURI, CHENGANNUR VILLAGE. 4. PAPPY KOSHY @ K.M.KOSHY,KURISUMMOOTTIL, MUNDANCAVU MURI, CHENGANNUR VILLAGE. R1 TO R3 BY ADVS. MR.JOSEPH A.VADAKKEL, MR.GEORGE KARITHANAM VARGHESE, MR.V.J.JOHN, MR.C.I.ABRAHAM, MR.JOSE KURIAKOSE (VILANGATTIL). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3340/2009-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO.128/05 ON THE FILE OF THE MUNSIFF'S COURT, CHENGANNUR. EXT.P.2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S. NO. 128/2005. EXT.P.3: COPY OF THE AMENDMENT APPLICATION FILED BY THE RESPONDENTS 1 TO 3. EXT.P.4: COPY OF THE OBJECTION FILED BY THE PETITIONER TO IA.NO.1014/2008. EXT.P.5: COPY OF THE ORDER DTD. 18/11/2008 IN I.A. NO. 1014/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.3340 of 2009 - V --------------------------------- Dated this the 24th day of September, 2009 J U D G M E N T The writ petition is filed seeking the following relief: “To issue appropriate writ or order setting aside Ext.P5 order in I.A.No.1014/2008 in O.S.No.128/2005 of the Munsiff Court, Chengannur.” 2. Petitioner is the defendant in O.S.No.128 of 2005 on the file of the Munsiff Court, Chengannur. Suit is one for declaration of title and possession and for perpetual prohibitory injunction, and the respondents are the plaintiffs. The defendant in his written statement disputing the title and right claimed by the plaintiff over the plaint item No.4, in respect of which alone such relief was claimed, among other contentions contended that the suit is barred by res judicata. The respondents/plaintiffs, thereupon, moved an application for amending the plaint to incorporate an additional relief for fixation of boundary. Ext.P1 is the copy of the original plaint presented by the plaintiffs and Ext.P2 the copy of the written statement. A copy of the W.P.(C).No.3340 of 2009 - V 2 amendment application filed by the plaintiffs is Ext.P3 to which the defendant filed Ext.P4 objections. Learned Munsiff after considering the amendment application in the light of the objections raised and hearing the counsel on both sides allowed the amendment sought for vide Ext.P5 order. Propriety and correctness of Ext.P5 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Learned counsel for the defendant submitted that the proposed amendment was canvassed to nullify the contentions raised in the written statement that the suit is barred by res judicata. In view of the previous decision rendered between the parties, according to the counsel, the present suit is barred and that plea being raised in the written statement by way of an amendment a new case is introduced. The court below without considering the objection in the proper perspective and in accordance with law permitted such amendment which, according to the counsel, was not proper and correct. On the other hand, W.P.(C).No.3340 of 2009 - V 3 the learned counsel for the respondents/plaintiffs contended that while allowing the proposed amendment, learned Munsiff has made it abundantly clear that the plea of res judicata canvassed by the defendant is left open for consideration in the trial of the suit and so much so, according to the counsel, no prejudice or injury is caused to the defendant. Inviting my attention to Usha Devi v. Rijwan Admad & others (AIR 2008 SC 1147) learned counsel for the plaintiff submitted that merit of the amendment is hardly a relevant factor to be considered in examining whether the amendment is allowable and what is to be looked into is whether such amendment is necessary for resolving the controversy arising for adjudication in the suit or proceedings. Perusing Ext.P5 order passed by the learned Munsiff with reference to Ext.P3 amendment application and Ext.P1 copy of the plaint, I find very many vital aspects which should have been taken note of by the court had not been taken into account while allowing the application for amendment. Without adverting to the merit of the case canvassed by the plaintiff in Ext.P1 plaint it has to be pointed out in the plaint allegations the plaintiffs have W.P.(C).No.3340 of 2009 - V 4 advanced a case over item No.4 pathway, in respect of which they claim declaration of right title as the main relief in the suit, they have perfected title by adverse possession and limitation. Admittedly, there was a suit as O.S.No.387 of 1974 as between the predecessor of the present plaintiffs and the predecessor of the defendant. In the suit, admittedly, the predecessor of the present plaintiffs had claimed a decree of prescriptive easement over the pathway described as item No.4. When a right of prescriptive easement is claimed inevitably it leads to the conclusion that the title of the defendant in the suit is admitted by the plaintiff therein. Whatever be the contentions raised in the written statement of the defendant, in Ext.P3 amendment application what the plaintiffs wanted was correction of the statement made in the original plaint that in the previous suit there was some omission to claim the rights canvassed in the present suit by seeking its deletion and incorporation of a new statement that they were unaware of the decree passed in the earlier suit O.S.No.387 of 1974 and it came to their knowledge much later, after the institution of the suit. I do not want to W.P.(C).No.3340 of 2009 - V 5 express any opinion on the merit of the case canvassed by the plaintiffs by way of the amendment, but, it could be seen from the nature of the amendment canvassed specific admission made in the original plaint was sought to be withdrawn and a new case introduced. When that be so, the court below before allowing the amendment was expected to consider whether legally such amendment was permissible. The decision relied by the learned counsel for the plaintiffs that the merit of the amendment need not be looked into while considering the amendment application but only its requirement for resolving the controversy, I find does not lend any assistance to the present plaintiffs to support Ext.P5 order impugned in the writ petition or sustain the amendment sought by them in the present suit. The facts involved in the decision rendered in Usha Devi's case (supra) would show the amendment canvassed there related to correction of the description of the plaint property and not introduction of a new case withdrawing the specific admission made earlier in the plaint. So much so, that decision, as already stated, is not applicable to the facts of the present case. Setting aside Ext.P5 W.P.(C).No.3340 of 2009 - V 6 order I direct the court below to examine Ext.P3 application for amendment in the light of Ext.p4 objections raised by defendant and also taking note of the observations made above and dispose of the application in accordance with law. Writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-