IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 OP(C).No. 3922 of 2011(O) ------------------------------------ OS.284/2010 of MUNSIFF COURT, TIRUR ORDER IN I.A.NO.1002/2011 OF THE MUNSIFF'S COURT, TIRUR .............................................................................................................. PETITIONER / PLAINTIFF : -------------------------------------- KHALID, S/O.KUNHIMOHAMMED HAJI, PANNIKORA HOUSE, PONMUNDAM AMSOM AND DESOM, PONMUNDAM P.O., TIRUR TALUK. BY ADVS. SRI.BLAZE K.JOSE SMT.N.DEEPA SMT.B.BINDU RESPONDENTS / DEFENDANTS : ------------------------------------------------ 1. K. ABOOBECKER, S/O.KUNHIMOIDEEN, CHAKKUMKULANGARA HOUSE, NEAR ANDIPADI MOSQUE, KANMANAM AMSOM AND DESOM, P.O.KANMANAM, TIRUR TALUK, PIN-676101. 2. MUHAMMED KUTTY HAJI, S/O.MOIDEEN, MATTATH VALAPPIL HOUSE, NAMBIYAM KUNNU, ANATHAVAOOR AMSOM AND DESOM, TIRUR TALUK, PIN-676 101. ADV. SRI.P.CHANDRASEKHAR FOR R2 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- OP(C).No. 3922 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: COPY THE PLAINT IN OS 284/2010 BEFORE THE MUNSIFF' COURT, TIRUR. EXHIBIT P2: COPY THE WRITTEN STATEMENT. EXHIBIT P3: COPY THE COMMISSION REPORT IN OS 284/2010 BEFORE THE MUNSIFF'S COURT, TIRUR. EXHIBIT P3(A): COPY THE SKETCH IN OS 284/2010 BEFORE THE MUNSIFF'S COURT, TIRUR. EXHIBIT P4: COPY THE PETITION IA 1002/2011 IN OS 284/2010 BEFORE THE MUNSIFF'S COURT, TIRUR. EXHIBIT P5: COPY THE COUNTER IN IA 1002/2011. EXHIBIT P6: COPY THE ORDER IN IA 1002/2011 IN OS 284/2010 DATED 03-09-2011 OF THE MUNSIFF, TIRUR. RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE DSV/- THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3922 of 2011 ==================================== Dated this the 09th day of December, 2011 J U D G M E N T Respondents though served, remains absent. 2. Plaintiff in O.S. No.284 of 2010 of the court of learned Munsiff, Tirur is aggrieved by Ext.P6, order dated 03.09.2011 dismissing I.A. No.1002 of 2011 seeking amendment of plaint to incorporate a prayer for mandatory injunction. 3. Petitioner filed the suit for a decree for prohibitory injunction against his forcible eviction from the building bearing door No.4/427E. According to the petitioner he is in possession of five rooms belonging to the respondents on rental arrangement. During the pendency of the suit petitioner filed I.A. No.1002 of 2011 for amendment of plaint to incorporate a prayer for mandatory injunction to restore demolished portion of the rooms. According to the petitioner, respondents demolished that portion of the rooms on the midnight of 10.10.2010 (though the suit was filed on 11.10.2010). 4. Application for amendment was opposed by the respondents. Learned Munsiff observed that what is referred to O.P(C) No.3922 of 2011 -: 2 :- in the plaint schedule is a room bearing door No.4/427E and that petitioner has no case that the portion shown by the Advocate Commissioner in the sketch as 'IFGH' (alleged demolished portion) formed part of entrustment. 5. It is contended by learned counsel that the said observation is not correct and that it is the case of petitioner that 5 rooms (including the demolished portion) were entrusted to him. Learned counsel has invited my attention to the plaint schedule where the building is referred as portion of the building bearing door No.TP4/427E with one room facing road on the west and 4 other rooms within the building. If that be so, observations made by the learned Munsiff in the impugned that according to the petitioner, entrustment is not of the five rooms is prima facie not correct. The question whether petitioner is entitled to get mandatory injunction is not a matter which is required to be decided at this stage. 5. Having heard learned counsel and gone through the records I find that petitioner ought to have been given opportunity to amend the plaint to incorporate the relief of mandatory injunction. Original Petition is allowed. Exhibit P6, order is set aside. O.P(C) No.3922 of 2011 -: 3 :- I.A. No.1002 of 2011 is allowed. Petitioner shall carry out amendment in the plaint within two weeks from the day a copy of this judgment is received in the court below. Needless to say that respondents will be entitled to file additional written statement in answer to the amended plaint. THOMAS P. JOSEPH, JUDGE. vsv