IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 WP(C).NO. 5759 OF 2008(I) --------------------------------------- AGAINST THE ORDER IN IA. 5242 /2007 IN OS.1388/2006 OF I ADDL.M.C.,TRIVANDRUM .................... PETITIONER(S): ----------------------- 1. CHANDRALEKHA, W/O.MADHUSOODANAN NAIR, T.C.14/1586, NEW HEAVENS, KARUVARKONAM NANTHANCODE, THIRUVANANTHAPURAM. 2. MADHUSOODANAN NAIR, S/O.BALAKRISHNA PILLAI, T.C.14/1586, NEW HEAVENS, KARUVARKONAM NANTHANCODE, THIRUVANANTHAPURAM. BY ADV. SRI.ASP.KURUP SRI.SADCHITH.P.KURUP RESPONDENT(S): ------------------------- KERALA WATER AUTHORITY, REP. BY ITS MANAGING DIRECTOR, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON 13/11/2008 DELIVERED THE FOLLOWING: W.P(C) NO. 5759 OF 2008 ---------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF PLAINT DATED 15.9.2006 FILED BY PETITIONERS IN O.S. NO.1388 OF 2006. EXHIBIT P2 TRUE COPY OF SETTLEMENT DEED NO.2112/2005 EXHIBIT P3 TRUE COPY OF LAND TAX RECEIPT DATED 16.4.2005 EXHIBIT P4 TRUE COPY OF RECTIFICATION DEED NO.4435 OF 2006 EXHIBIT P5 TRUE COPY OF WRITTEN STATEMENT FILED BY RESPONDENT EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT FILED BY PETITIONER EXHIBIT P7 TRUE COPY OF AMENDMENT PETITION DATED 26.6.2007 EXHIBIT P8 TRUE COPY OF OBJECTION DATED 18.8.2007 EXHIBIT P9 TRUE COPY OF ORDER DATED 2.1.2008 IN AMENDMENT PETITION RESPONDENTS' EXHIBITS: NIL ------------------------------------- THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P(C) No. 5759 of 2008 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 13th day of November, 2008 J U D G M E N T ---------------------- Order dated 2.1.2008 in I.A. No.5242 of 2007 in O.S. No.1388 of 2006 of the Additional Munsiff's Court (Rent Control Court), Thiruvananthapuram refusing amendment to the plaint schedule is under challenge in this proceeding under Article 227 of the Constitution. 2. Heard both sides. 3. Exhibit P1 is the copy of plaint. Petitioners laid the suit against the respondent seeking decree for prohibitory injunction against interfering with their possession and enjoyment of the schedule property described in the plaint schedule as 4.200 cents in Sy.No.3283 lying within the boundaries mentioned therein. Petitioners claimed that first petitioner acquired title and possession of that property as per Exhibit P2, settlement deed dated 15.4.2005 executed by Madhusoodanan Nair, her husband (second petitioner). It is also contended that petitioners are running hotel business in a 50 year old building in the said property. Respondent filed Exhibit P5 written statement contending that the property over which W.P(C) No.5759 of 2008 -: 2 :- petitioners claim title and possession is comprised in Sy.No.3597. Petitioners have no right over the property comprised in Sy.No.3283. According to the respondent, the building where petitioners are running the hotel is situated in Sy.No.3597. Attempt of the petitioners is to grab puramboke land. Respondent made a counter claim in Exhibit P5 written statement seeking mandatory injunction to direct the petitioners to demolish the unauthorised construction in the schedule property. Petitioners answered that counter claim by Exhibit P6, written statement wherein they claimed that the assignor of second petitioner (who executed settlement deed in favour of first petitioner), Gowri Appan got title over the property comprised in Sy.Nos.3283 and 3597 as per partition deed No.3153 of 1973 and that Gowri Appan assigned the property to the second petitioner but wrongly describing it as comprised in Sy.No.3283 instead of 3597. It is to amend the schedule of property in the plaint accordingly that petitioners filed I.A. No.5242 of 2007. That application was opposed by the respondent contending that if allowed, it would change the character of the suit. Learned Additional Munsiff observed that though petitioners claim that Gowri Appan had executed correction deed as document No.4435 of 2006 clarifying the mistake in the survey W.P(C) No.5759 of 2008 -: 3 :- number as above stated and that mistake in the plaint schedule happened to be carried from the mistake that occurred in Exhibit P2 (which stands corrected by document No.4435 of 2006) but the petitioners did not reveal the date on which Gowri Appan executed correction deed No.4435 of 2006. Learned Additional Munsiff observed that it is revealed that petitioners have no right over the schedule property. It is also observed that if the amendment sought for is allowed it will change the character of the suit and will cause prejudice to the respondent. It is accordingly that application was dismissed. 4. Learned counsel for the petitioners contended that the description of the property and survey number in the plaint schedule is a mistake which was carried into the plaint from Exhibit P2 which stands corrected by Exhibit P4, correction deed No.4435 of 2006. Learned counsel for the respondent contended that the attempt of the petitioners is to establish right over the property to which petitioners are not entitled. 5. I have gone through I.A. No.5242 of 2007. It is seen that amendment sought for is regarding the description and survey number of the property over which petitioners laid hands in the suit. W.P(C) No.5759 of 2008 -: 4 :- Further amendment sought for is regarding the oldness of the building. In the plaint schedule the oldness of the building is stated as 50 years whereas in the amendment sought for it is stated as 80 years. No amendment is sought regarding the boundary of the property scheduled in the plaint. Description in Exhibit P2 shows that it is exactly in tune with what is stated in the plaint schedule. Exhibit P4 is the correction deed No.4435 of 2006 executed by Gowri Appan, assignor of second petitioner. In that correction deed it is stated that Gowri Appan got title over B schedule in partition deed No.3153 of 1973, he transferred that property to the second petitioner as per document No.3707 of 2001 and that second petitioner settled that property in favour of first petitioner as per Exhibit P2, settlement deed No.2112 of 2005 but there happened to be mistake in the sale deed No.3707 of 2001 and consequently in Exhibit P2, settlement deed No.2112 of 2005 regarding survey number and description which he corrected as per Exhibit P4. 6. Point for consideration is whether amendment can be permitted. General principle regarding amendment is that all amendments which are necessary to settle the dispute between the parties are to be allowed provided it does not change the character of W.P(C) No.5759 of 2008 -: 5 :- the suit and does not cause prejudice to the opposite party. In this case, stating the survey number which according to the petitioners is the correct one, they have answered the counter claim as seen from Exhibit P6. While considering the counter claim made by the respondent, trial court is required to consider the contention raised by the petitioners that the schedule property is comprised in Sy.No.3597 (not in Sy.No.3283 as stated in the plaint schedule). Trial court cannot refuse to consider that contention in Exhibit P6 merely for the reason that in the plaint schedule a different survey number or description is given. The claim made by the petitioners regarding 4.200 cents in Sy.No.3597 and tracing their right through sale deed No.3707 of 2001 and partition deed No.3251 of 1973 is to be adjudicated at least in the counter claim contained in Exhibit P5 in the light of the contentions raised in Exhibit P6. Hence it cannot be said that respondent will be prejudiced by allowing the amendment. After all, court is not required to consider the merit of the matter required to be introduced by amendment. What is to be considered is whether the application is bona fide. Since the mistake in survey number originated from Exhibit P2 which stands corrected by Exhibit P4 it cannot be said that there was lack of bona fides on the part of the W.P(C) No.5759 of 2008 -: 6 :- petitioners. After amendment of the plaint schedule it is open to the respondent to plead by way of additional written statement if any and prove that petitioners have no right over the property described in the amended plaint schedule and that document of title relied by the petitioners did not confer title on them over the said property. It is seen from the order under challenge that learned Munsiff has not considered these aspects of the matter. In the facts and circumstances, I am inclined to think that learned Munsiff should have allowed the amendment as prayed for. Writ Petition therefore, is allowed. I.A. No.5242 of 2007 shall stand allowed. Petitioners shall carry out the amendment within fourteen days from this day or within such time as may be extended by the court below for valid reasons. After the amendment is carried out, court below shall give the respondent opportunity to file additional written statement, if any. THOMAS P.JOSEPH, JUDGE. vsv