IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 WP(C).No. 4767 of 2009(P) ------------------------------------- OS.374/2002 of MUNSIFF COURT, VADAKKANCHERRY .................... PETITIONER(S): ---------------------- RATHI SREEDHARAN, W/O.POOKKAYIL SREEDHARAN, NELLUVAY VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR. BY ADV. MR.K.N.PADMAKUMAR RESPONDENT(S): ------------------------ 1. THE SECRETARY, ERUMAPPETTY GRAMA PANCHAYATH, MANGADU P.O., KOTTAPURAM, THRISSUR. 2. DEVASSY, S/O.THARAYAIL KUREETH, NELLUVAY VILLAGE DESOM, THALAPPILLY TALUK, THRISSUR. 3. MANI, S/O.MALAYAMKUNNATH VELUKUTTY, NELLUVAY VILLAGE DESOM, THALAPPILLY TALUK, THRISSUR. 4. CHANDRAN, S/O.CHENNATT RAMAN, NELLUVAY VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR. 5. RAJAN, S/O.THOPPIL KUNJAN, NELLUVAY VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR. 6. ANIL, S/O.KAKKATT CHANDRAN, NELLUVAY VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR. 7. JOSEPH, S/O.CHERUVATHOOR KOCHANTHONY, NELLUVAY VILLAGE DESOM, THALAPPILLY TALUK, THRISSUR. R1 BY ADV. MR.V.BINOY RAM, MR.K.D.BABU(KOTTACKAL). R2 TO R5 & R7 BY ADV. MR.G.SREEKUMAR (CHELUR), MR.SAJITH KUMAR KANGHINGHAT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 4767/2009-P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT DATED 31/07/2002 IN O.S.374/2002 ON THE FILES OF THE MUNSIFF COURT, WADAKKANCHERY. EXT.P2: COPY OF THE COMMISSION REPORT DATED 28/03/2007 IN O.S.374/2002 ON THE FILES OF THE MUNSIFF COURT, WADAKKANCHERRY. EXT.P3: COPY OF THE I.A.68/2009 DATED 05/01/2009 IN O.S.374/2002 ON THE FILES OF THE MUNSIFF COURT, WADAKKANCHERRY. EXT.P4: COPY OF THE ORDER DATED 22/1/2009 IN I.A.68/2009 IN O.S.374/2002 OF THE MUNSIFF COURT, WADAKKANCHERRY. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.4767 OF 2009 -------------------------- Dated this the 23rd day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records, set aside the order dated 22/01/2009 in I.A No.68/2009 in O.S No.374/2002 of the Munsiff Court, Wadakkachery and allow the amendment in the interest of justice. 2. Petitioner is the plaintiff in O.S No.374 of 2002 on the file of the Munsiff Court, Wadakkachery. Suit is one for prohibitory injunction and damages, and the respondents are the defendants. Petitioner/plaintiff applied for an amendment of the plaint to seek an additional relief of recovery of possession on the basis of title. The first respondent filed objections to W.P.(C).No.4767 OF 2009 Page numbers that application. The court below after hearing both sides dismissed the amendment application vide Ext.P4 order. Propriety and correctness of that order is challenged in the 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. Proposed amendment has become necessary in the light of the commission report filed before the court after measuring the property with the assistance of a surveyor, and also for the reason that after the filing of the suit the defendants trespassed upon the property in their possession, according to the learned counsel for the petitioner. To resolve the controversies involved in the suit, the proposed amendment is vital, submits the counsel. On the other hand, the respective counsel appearing for the respondents W.P.(C).No.4767 OF 2009 Page numbers contended that there is no merit in the amendment application, and further, that application was moved belatedly without showing the grounds, why it could not have been moved earlier. Having regard to the submissions made and perusing Ext.P4 order with reference to other materials produced with the writ petition, I find that there is some force in the submission made by the counsel for the respondents that, there is lack of due diligence on the part of the plaintiff in seeking the amendment even if it had been necessary for resolving the controversies. The advocate commissioner had filed his report as early on 28/03/2007. The amendment application was moved only on 05/01/2009. Meanwhile the case was once included in the special list on 02/02/2008. No circumstance whatsoever had been made out by the plaintiff to show why the proposed amendment could not have been made before the commencement of the trial. The embargo placed W.P.(C).No.4767 OF 2009 Page numbers under the proviso under Order 6 Rule 17 of the Code of Civil Procedure is applicable to the case. I find no impropriety or illegality in the order passed by the learned Munsiff declining the request for amendment. There is no merit in the writ petition, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv