IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 21897 of 2010(O) -------------------------- IA NO.1307/2009 IN OS.185/2008 of ADDL.MUNSIFF COURT,KOCHI .................... PETITIONER(S): --------------- RADHAKRISHNAN, AGED 70 YEARS, S/O.LATE KATHIRVELU, RESIDING IN X/1023, AMARAVATHI ROAD, FORTKOCHI VILLAGE, KOCHI TALUK. BY ADV. SRI.T.A.NARAYANAN NAIR SRI.SHIVSHANKARA RAO RESPONDENT(S): --------------- DHANIKACHALAM, AGED 76 YEARS, S/O.KATHIRVELU, RESIDING IN X/1195-A, AMARAVATHI ROAD, FORTKOCHI VILLAGE, KOCHI TALUK - 682 001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.21897 of 2010 -------------------------------------- Dated this the 14th day of July, 2010. JUDGMENT Plaintiff in O.S.No.185 of 2008 of the court of learned Additional Munsiff, Kochi is the petitioner before me challenging Ext.P7, order dated 07.04.2010 on I.A.No.1307 of 2009. That is an application for amendment of plaint which learned Munsiff dismissed as per the impugned order. 2. Suit as it is now filed is for specific performance of an agreement for sale between petitioner and respondent, his brother. It concerned an oral agreement for sale of 25 ¼ cents of land described in the plaint schedule and belonging to the respondent as per partition deed No.738 of 1974. In that partition, plot D was allotted to petitioner and plot C was allotted to his brother, Ganeshan. According to the petitioner, Ganeshan filed O.S.No.274 of 2005 for a decree for injunction against petitioner trespassing into plot C. Petitioner resisted that suit claiming to be in possession of plot C and to have perfected title over that item by adverse possession and law of limitation. That suit was dismissed for default on 14.06.2006. Though Ganeshan filed I.A.No.1346 of 2007 for restoration of the suit he died pending that application on 11.10.2007 and the proceedings, according to the petitioner abated and the application was dismissed on 11.10.2007. That according to the petitioner confirmed his claim of adverse possession and limitation in respect of plot C of partition deed WP(C) No.21897/2010 2 No.738 of 1974. In the said circumstances petitioner filed I.A.No.1307 of 2009 for amendment of plaint (relating to specific performance of alleged oral agreement for sale of suit property belonging to the respondent) to incorporate in plaint schedule plot C of partition No.738 of 1974 and seeking injunction against respondent/defendant on the premise that petitioner has perfected title over the said plot C by adverse possession and limitation and hence respondent has no right of access through plot C. That application was dismissed by learned Munsiff. Learned counsel for petitioner contends that learned Munsiff has observed that amendment prayed for “does not alter the nature and cause of action of the original suit” and the amendment would avoid multiplicity of proceeding but refused to allow amendment on the ground that respondent is not bound to answer frivolous claims of petitioner and that amendment if permitted would result in injustice to the respondent. Learned counsel contends that finding of learned Munsiff is not correct and that amendment if permitted would not cause any prejudice to the respondent. 3. I am unable to agree with the observation made by learned Munsiff that amendment prayed for, if allowed would not change or alter character of the suit. The suit is one for specific performance of an alleged oral agreement for sale of the property belonging to respondent. Question for consideration in the suit is whether there was any such oral agreement and if so it is specifically enforceable in favour of petitioner. The suit concerns petitioner and the respondent and is concerning the property scheduled. The claim now sought to WP(C) No.21897/2010 3 be incorporated by amendment is not anything connected with the alleged oral agreement for sale, its enforceability or concerning the suit property but relating to another item of property, the title holder of which was Ganeshan and ofcourse which petitioner claims he has perfected title by adverse possession and limitation. Relief sought in respect of plot C of the partition deed is a decree for injunction against respondent. Question whether petitioner is entitled to any right over plot C is not a matter which is required to be decided in the present suit to grant the relief of specific performance prayed for. Nor is the claim of petitioner over plot C of the partition deed required to be decided in this case without legal representatives of Ganeshan on record as parties, whatever be the claim of petitioner over that property based on the dismissal of I.A.No.1346 of 2007 for restoration of O.S.No.274 of 2005 which was dismissed for default. That is a matter which petitioner has to agitate in separate proceeding with legal representatives of Ganeshan also on the party array. Amendment if allowed would change the character and nature of the suit and require impleadment of legal representatives of Ganeshan. Having these aspects in mind I am unable to agree with the observation made by learned Munsiff that the amendment if allowed would not change “character and nature of cause of action”. I hold that if amendment as prayed for if allowed would result in altering the nature and character of the suit for specific performance and affect the right if any of third parties to the present suit. Hence, the ultimate order passed by learned Munsiff on I.A.No.1307 of 2009 has only to be upheld though not merely for the reason stated by learned Munsiff. WP(C) No.21897/2010 4 Resultantly this Writ Petition is dismissed without prejudice to the right of petitioner to file fresh suit in respect of the matter sought to be incorporated by amendment if he is otherwise entitled to that course. THOMAS P.JOSEPH, Judge. cks