IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 11001 of 2008(I) -------------------------- I.A.9885/2007 IN OS.526/2007 of I ADDL.M.C.,TRIVANDRUM .................... PETITIONER: ------------ OUSEPH FERNANDEZ, S/O.LATE MARSHAL FERNANDEZ, THARAVADU, VADAYIL, MENAMKULAM, KAZHAKUTTAM (P.O), THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.V.MADHURIPAN PILLAI RESPONDENTS: ----------------- 1. ST.DOMENIC CHURCH, ST.DOMENIC STREET, ST.XAVIER'S COLLEGE, (P.O), THIRUVANANTHAPURAM, REPRESENTED BY PARISH COUNCIL SECRETARY, MRS.ANNAMMA CRUZ. 2. JAYABHARATH LIBRARY, ST.DOMENIC STREET, ST.XAVIER'S COLLEGE (P.P), THIRUVANANTHAPURAM, REPRESENTED BY PARISH COUNCIL SECRETARY, MRS.ANNAMMA CRUZ. BY ADV. SRI.V.SURESH FOR R1 & R2 SRI.G.SUDHEER FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioner's exhibits:- Ext.P1:- True copy of affidavit and petition in I.A.No.9885/2007 in O.S.526/2007 before the 1st Additional Munsiff's Court, Thiruvananthapuram dated 29.11.2007. Ext.P2:- True copy of counter affidavit filed by the respondents dated 3.12.2007. Ext.P3:- True copy of the order passed in I.A.No.9885/2007 in O.S.No.526/2007 before the 1st Additional Munsiff's Court, Thiruvananthapuram dated 15.1.2008. /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.11001 OF 2008 =========================== Dated this the 30th day of July,2008 JUDGMENT This petition is filed under Article 227 of the Constitution of India challenging Ext.P3 order passed by the Munsiff, Thiruvananthapuram rejecting part of the amendment sought for under Ext.P1 petition. Learned Munsiff did not permit the amendment sought for in respect of the details sought to be added as paragraph 7, 7(a) and 7(b) after deleting the original paragraph 7. The argument of the learned counsel appearing for petitioner was that what was sought for by the amendment is only to correct the mistake in the original pleading with regard to the number of years during which petitioner has been using the plaint B schedule way. It was argued that when it was instructed that plaint B schedule property is being used by the petitioner and his predecessors for more than 50 years, by mistake, in the plaint W.P.(C) 11001/2008 2 it is shown as 15 years and that is what was sought to be corrected by amendment of the plaint and learned Munsiff should have allowed the amendment sought for. It was argued that even if that amendment is allowed, it will not alter the nature of the case and therefore Ext.P3 order is to be modified. 2. Learned counsel appearing for respondents argued that apart from the plaint in the several affidavits filed by petitioner there is specific admission that he and his predecessors have been using plaint B schedule property for 15 years and not 50 years and therefore there is no bona fides in the petition. It was argued that realising the mistake that by usage of the plaint B schedule property for 15 years, a right of easement of prescription cannot be claimed, amendment was sought for and it was rightly rejected by the learned Munsiff. 3. On hearing the learned counsel appearing for petitioner and respondents, it is clear that W.P.(C) 11001/2008 3 what was sought for by petitioner is to correct the period he and his predecessors have been using the plaint B schedule way. In view of the case of the petitioner that what he intended was 50 years and not 15 years, in the interest of justice, petitioner is permitted to amend the plaint as sought for in paragraph 7, I do not find it necessary to allow the amendment sought for in paragraph 7(a) and 7(b). 4. Hence the Writ Petition is allowed. Ext.P3 is modified permitting the petitioner to amend the plaint as sought for by deleting the original paragraph 7 and substituting the paragraph 7. Respondents are entitled to file an additional written statement taking up all the contentions. If there is any admission by the petitioner in any other pleading or affidavit, respondents are entitled to make use of the same at the time of evidence. W.P.(C) 11001/2008 4 M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006