IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 CRP.No. 2445 of 2002() ---------------------- AGAINST THE ORDER DATED 05/06/2002 IN IA. 562 /2002 IN OS.371/1997 of MUNSIFF COURT, ALATHUR .................... PETITIONERS: APPLICANTS/PLAINTIFFS: ------------------------------------------------------------ 1. SURENDRAN S/O. M.K.NARAYANAN, ERIMAYUR, ALATHUR TALUK, PALAKKAD DIST. 2. V.LEELA, W/O. M.SWAMIMALA, RESIDING AT... DO.. 3. C.BHASKARAN, S/O.K.CHANDRAN RESIDING AT ..DO.... 4. SUJAVUDEEN, S/O. ABDUL RASHEED, RESIDING AT ..DO.... 5. K.V.RAMAKRISHNAN, S/O. VELAYUDHAN, RESIDING AT ...DO.... 6. C.M.MOHAMMED RAFI ,S/O. C.S.MAJEED, RESIDING AT ...DO...... BY ADV. SRI.P.R.VENKITESH RESPONDENTS: RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------------- 1. ERIMAYUR JUMAATH MOSQUE COMMITTEE REP. BY ITS PRESIDENT, ERIMAYUR POST, PALAKKAD DIST. 2. THE SECRETARY, ERIMAYUR JUMAATH COMMITTEE, ERIMAYUR, ALALTHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/02/2008 ALONG WITH CRP NO. 2590 OF 2002, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = C.R.P. Nos.2445 & 2590 OF 2002 = = = = = = = = = = = = = = = Dated this the 13th day of February, 2008 O R D E R C.R.P.2445/02 is preferred against the order of the Munsiff, Alathur in I.A.562/02 whereby the Court declined to entertain an amendment application. C.R.P.2590/02 is filed against the order of the Munsiff in I.A.579/02 which is a petition filed for restoration of suit dismissed for default. The Court below after considering the materials available allowed the petition on payment of costs of Rs.1,000/- and Rs.500/- to the Taluk Legal Service Committee. It is averred in the petition that on account of the piles compliant of the 5th petitioner he could not prosecute the case. The evidence had been let in and the Court ultimately had used its discretion to grant a chance to the plaintiff to contest the suit. I do not find any ground to interfere with the discretionary jurisdiction exercised by the Court especially in the light of the decision of this Court reported in Sreedhara Kurup v. Mickel (1968 KLT 599) wherein C.R.P.Nos.2445&2590/02 -:2:- this Court held that the broad principles of natural justice demand that an opportunity should be given to prosecute the case on merits. This Court also held that unless there is gross negligence or grave mis-conduct an opportunity should not be denied. It was further held that if the application for restoration of setting aside the exparte decree is filed in time and some evidence is let in the Court can always consider the same and allow the same and compensate the other side by ordering some costs. So this has been precisely followed by this Court again in a Division Bench in the decision reported in Plantation Corporation of Kerala v. Hussain (1998 (1) KLT 1008). So I do not find any ground to interfere and therefore C.R.P.2590/02 is dismissed. 2. The next question to be considered is regarding the amendment. The Court below refused to entertain the amendment application. The learned counsel for the revision petitioner therein has made available a copy of the amendment application for perusal. A reading of the C.R.P.Nos.2445&2590/02 -:3:- affidavit would show that there was some agreement between the plaintiff and defendants with respect to construction of rooms for the use of the tenants who had vacated the premises for the purpose of constructing a Kalyanamandapam. Now it is averred in the petition that if the Court finds that the plaintiffs are not entitled to insist for getting possession of the rooms constructed near the National Highway road on the eastern side, then direct the defendants 1 and 2 to construct rooms for the plaintiffs in the very same site where the original building was standing, namely, the land wherein the Kalyanamandapam is constructed either by converting the Kalyanamandapam into various rooms or by directing demolition of the Kalyanamandapam and construct a six room building to accommodate the plaintiffs. A perusal of the same would show it is not the main relief that is sought for but it is only an alternate relief. It is a well settled principle that Courts are not expected to consider merits or demerits of the same at the time of considering the amendment application. If C.R.P.Nos.2445&2590/02 -:4:- there is no legal dis-entitlement it is also a matter that can be considered by the Court at the stage of final disposal of the matter. One cannot hold that it is an inconsistent plea for the reason that it is an alternate plea. Therefore I am inclined to allow the amendment application making it very clear that the defendants in the suit can file written statement and challenge the very maintainability of such a relief in the suit. Therefore I set aside the order passed by the learned Munsiff and allow the amendment application. It is for the Court to consider whether any additional Court fee has to be paid for the additional relief claimed in the amendment application and if further amendment is necessary that also may be done to comply with the mandate of the law. In the result C.R.P.2590/02 is dismissed and C.R.P.2445/02 is allowed. M.N. KRISHNAN, JUDGE. ul/- C.R.P.Nos.2445&2590/02 -:5:- M.N. KRISHNAN, J. = = = = = = = = = = C.R.P.Nos.2445 & 2590/02 = = = = = = = = = = = O R D E R 13th February, 2008.