IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 4470 of 2009(F) ------------------------- OS.885/2007 of PRINCIPAL MUNSIFF'S COURT,ALAPPUZHA .................... PETITIONER(S): ------------------------ 1. N.S. VIJAYAN, AGED 59 YEARS, S/O. SANKU, NEDUMPARAMBU HOUSE, PARAVUR VILLAGE, PUNNAPRA P.O., ALAPPUZHA. 2. VIJESH, AGED 24 YEARS, S/O. N.S. VIJAYAN, NEDUMPARAMBU HOUSE, PARAVUR VILLAGE, PUNNAPRA P.O., ALAPPUZHA. BY ADVS. MR.P.K.IBRAHIM, MR.THOMSTINE K.AUGUSTINE, MR.C.N.GOPAKUMAR, SMT.K.P.AMBIKA. RESPONDENT(S): ---------------------------- SHYLESAN, S/O. LATE DAMODARAN, EZHARAYIL WEST OF KURUVANTHODU JUNCTION, VANDANAM, PUNNAPRA,ALAPPUZHA. BY ADVS. MR.A.T.ANILKUMAR, SMT.V.SHYLAJA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.4470/2009 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT FILED BY THE RESPONDENT BEFORE THE MUNSIFF'S COURT, ALAPPUZHA DTD. 29/11/07. P2: COPY OF THE WRITTEN STATEMENT DTD. 28/01/08 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, ALAPPUZHA. P3: COPY OF THE AFFIDAVIT SUPPORTING THE I.A. AND THE I.A.3395/08 DTD. 10/10/08 FILED BY THE RESPONDENT BEFORE THE MUNSIFF'S COURT, ALAPPUZHA. P4: COPY OF THE OBJECTION DTD. 18/10/08 FILED BY THE DEFENDANTS IN THE SUIT BEFORE THE MUNSIFF'S COURT, ALAPPUZHA. P5: COPY OF THE ORDER DTD. 13/10/08 IN I.A.NO.3395/08 IN O.S.NO.885/07 OF THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA. P6: COPY OF THE AMENDED SCHEDULE. P7: COPY OF THE AFFIDAVIT SUPPORTING THE I.A. AND THE I.A.DTD. 15/12/08 FILED BY THE RESPONDENT BEFORE THE MUNSIFF'S COURT, ALAPPUZHA. P8: COPY OF THE ORDER DTD. 17/01/09 IN I.A.NO.4153/08 IN O.S.NO.885/07 OF THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.4470 of 2009 - F --------------------------------- Dated this the 2nd day of July, 2009 J U D G M E N T This writ petition is filed seeking the following reliefs: “i) To call for the records I.A.No.4153/2008 in O.S.No.885/2007 on the files of the Principal Munsiff's Court, Alappuzha and set aside Ext.P8. ii) To issue an interim order staying the proceeding in O.S.No.885/2007 on the files of the Principal Munsiff's Court, Alappuzha, pending disposal of the writ proceedings.” 2. Petitioners are the defendants in O.S.No.885/2007 on the file of the Principal Munsiff Court, Alappuzha. Suit was one for injunction and the respondent is the plaintiff. After commencement of the trial, the respondent moved an application to amend some mistakes in the description of the boundaries shown in the plaint schedule, which was objected to by the petitioners/defendants. The learned Munsiff after hearing both sides allowed the amendment application. The amendment was carried out in the plaint. The respondent/plaintiff gave a copy of W.P.(C).No.4470 of 2009 - F 2 the amended plaint to the petitioners/defendants. It was noticed during the trial that in the copy of the amended plaint given to the defendants there was a mistake and the correction made was not truly reflected. Thereupon, petitioners/defendants moved an application to strike out the amendment already carried in the plaint contending that the plaintiff has practiced a fraud on the court and also on the opposite party. Ext.P7 is the copy of that application. Learned Munsiff, after hearing both sides, found that it was only an inadvertent mistake on the part of the respondent/plaintiff, which deserved to be condoned. The plaintiff was directed to hand over a corrected copy of the amended plaint to the defendants and the defendants was provided with an opportunity to further cross examine the plaintiff, already examined as PW1. Ext.P8 is the copy of that order. Correctness and propriety of Ext.P8 order is impeached by the petitioners/defendants invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. W.P.(C).No.4470 of 2009 - F 3 3. I heard the counsel on both sides. 4. Learned counsel for the petitioner urged before me that even in the written statement a specific contention was taken, of the mis-description of the plaint schedule property in respect of which the decree for injunction was sought for. After the case came up in the list for trial and that too only after commencement of recording of evidence, the plaintiff took any steps for correcting the mis-description in the plaint schedule. The commissioner deputed to conduct a local inspection, it is submitted by the counsel, has also noted such mis-description in the plaint schedule. There was culpable negligence and deliberate latches on the part of the plaintiff in moving for the amendment to correct the plaint schedule and, so much so, the learned Munsiff was not justified in allowing the amendment application. The further grievance of the counsel is that even if the amendment was permitted to be carried out in the plaint, the plaintiff practiced fraud upon the defendants by serving them a copy of the plaint carrying a mis-description of the plaint. Ext.P7 application moved by the defendant to strike out the amendment W.P.(C).No.4470 of 2009 - F 4 carried in the plaint ought to have been given serious consideration, and according to the counsel, Ext.P8 order is liable to be set aside. 5. The challenge raised in the writ petition is confined to Ext.P8 order and so much so, any question as to the propriety and correctness of the order passed by the learned Munsiff allowing the amendment application is outside the scope of this petition. Learned counsel for the petitioners fairly submitted that a challenge against the amendment was not taken in the present petition since it had been challenged earlier by way of a writ petition unsuccessfully, and this Court has upheld the order of the learned Munsiff, allowing the amendment. The question now posed for consideration is very much limited and it is confined to whether the learned Munsiff in exercising her judicial discretion has flouted any principle of law or rules governing procedure. By filing Ext.P7 petition, defendants in the suit were seeking for striking out the amended portion from the pleadings. Striking out of pleadings by the court is covered by Order VI Rule 16 CPC and it is permissible only under the three circumstances W.P.(C).No.4470 of 2009 - F 5 enumerated thereunder. The case in hand does not come within any of the circumstances covered by Order VI Rule 16 CPC. Then the question is whether any prejudice had been caused to defendants by the copy of the amended plaint given by the plaintiff which contained some mistake with respect to the amendment carried out in the plaint filed before the court. In this context, it has to be taken note that before filing of an amendment application, the party moving for such amendment has to hand over a copy of such petition to the opposite party. But, there is no provision in the CPC mandating serving of a copy after amendment is carried out. It appears that the plaintiff was gracious enough to hand over an amended copy of the plaint to the opposite party, but, some mistakes were in the copy given. That cannot be taken as a serious lapse, and no fraud can be attributed to the plaintiff of deliberately misleading the defendant in any manner. Perusing Ext.P8 order, I find that the learned Munsiff has appreciated the situation rightly and correctly and exercised her discretion soundly. The learned Munsiff has taken care that no prejudice is caused to the defendant in serving of a W.P.(C).No.4470 of 2009 - F 6 copy of the plaint containing a mis-description, by ordering the plaintiff to serve a copy showing the correct amendment carried out in the plaint. The order further discloses that the defendant was given opportunity to cross examine PW1 again after corrected amended copy is given. No interference with Ext.P8 order emerges for consideration in the facts and circumstances of the case, which is found to be proper and correct. The writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-