IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 OP(C).No. 2904 of 2011(O) ------------------------- OS.100/2009 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONERS: --------------------- 1. JOSE,S/O.ITTAN,R/AT KOCHUKUDY PUTHENPURAYIL,(KANJIRAKKATTU) HOUSE,THEKKENMARADY KARA,MARADY VILLAGE,MUVATTUPUZHA TALUK. 2. MOLY,W/O.JOSE,R/AT IN DO. DO. BY ADV. SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN RESPONDENT: --------------- PONNAPPAN NAIR,S/O.PADMANABHAN NAIR, R/AT PAIKATHUPUTHENPURAYIL(PANGOTTU) HOUSE, THEKKENMARADY KARA,MARADY VILLAGE,MUVATTUPUZHA TALUK,PIN 686 673. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2904 of 2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PLAINT IN O.S.NO.100 OF 2009 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA DTD 27.02.2009 EXT.P2 : COPY OF THE REPORT AND SKETCH OF THE COMMISSIONER FILED IN I.A.NO.712 OF 2009 IN O.S.NO.100 OF 2009 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA DTD 05.03.2009 EXT.P3 : COPY OF THE APPLICATION I.A.NO.2317 OF 2011 IN O.S.NO.100 OF 2009 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA DTD 25.07.2011 EXT.P4 : COPY OF THE ORDER I.A.NO.2317 OF 2011 IN O.S.NO.100 OF 2009 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA DTD 10.08.2011 RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2904 of 2011 --------------------------------------- Dated this 02nd day of September, 2011 JUDGMENT Petitioners are the plaintiffs in O.S.No.100 of 2009 of the Court of learned Munsiff, Muvattupuzha, a suit for prohibitory injunction against reducing the width of plaint C schedule or interfering with its nature and lie. Plaint A schedule belongs to the petitioners and plaint B schedule is described as 2 cents on the immediate south of plaint A schedule and lying contiguous. The claim is regarding plaint C schedule having length of 15meters and width of 12ft and falling in survey 341/4C. Advocate Commissioner submitted Ext.P2, report on 05.03.2009 showing the length of plaint C schedule as 75ft and width as 10.7ft to 13.10ft. Thereafter the plaint was amended. Parties went to trial and at a time when the evidence was almost over, petitioners filed I.A.No.2317 of 2011 (Ext.P3) on 25.07.2011 for a further amendment of the plaint to make the plaint C schedule in tune with Ext.P2, report and also to correct the southern boundary of plaint B schedule. That was not allowed by learned Munsiff by Ext.P4, order for the reason that the proviso to Rule 17 of Order VI of the Code of Civil Procedure is not satisfied. The O.P(C).No.2904 of 2011 -: 2 :- said order is under challenge. 2. Learned Senior Advocate has contended that no prejudice will be caused to the respondents by the amendment of plaint and that what is required is only a correction of plaint C schedule to make it in tune with Ext.P2, report. 3. It is not disputed that Ext.P2, report of the Advocate Commissioner was filed on 05.03.2009 and thereafter, based on that report petitioners obtained an amendment of the plaint. Still, they did not think of seeking amendment of the plaint as now prayed for. It is after the evidence was over that the present application was filed. I am inclined to think that learned Munsiff was correct in holding that there was lack of diligence on the part of petitioners. I do not find reason to interfere. But I make it clear that refusal to grant relief in this proceeding or any observation made in this judgment will not preclude petitioners from challenging correctness of Ext.P4, order in an appeal that may arise from the judgment and decree in O.S.No.100 of 2009 as provided under the law. With the above observation this original petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-