IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WP(C).No. 22540 of 2008(G) -------------------------- OS.130/2004 OF MUNSIFF COURT, VADAKKANCHERRY .................... PETITIONER(S): --------------- KARTHIYANI, D/O VARIYATH VALAPPIL CHATHA, MARATHKUNNU COLONY, ENKAKKAD VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.K.P.SUDHEER RESPONDENT(S): --------------- 1. CHIRANGADAN, S/O CHOLAKKAL ANTHYALAN MARATHKUNNU COLONY, ENKAKKAD VILLAGE, TALAPPILLY TALUK. 2. KOCHI W/O CHOLAKKAL CHIRANGADAN, MARATHKUNNU COLONY, ENKAKKAD VILLAGE, DESOM, TALAPPILLY TALUK. 3. KARTHIYANI, D/O CHOLAKKAL CHIRANGADAN, MARATHUKUNNU COLONY, ENKAKKAD VILLAGE, TALAPPILLY TALUK. 4. SIVAN ,S/O CHOLAKKAL CHIRANGADAN, MARATHKUNNU COLONY, ENKAKKAD VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.D.SREEKUMAR FOR R1,3 &4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.22540 OF 2008 EXT.P1 TRUE COPY OF THE PLAINT DATED 11.3.2004 IN O.S.NO.130/04. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 28.5.2004. EXT.P3 TRUE COPY OF THE PETITION SEEKING AMENDMENT OF THE PLAINT DATED 20.6.2008 AS I.A.NO.1237 OF 2008 EXT.P4 TRUE COPY OF THE APPLICATION FOR AMENDMENT OF THE AMENDMENT APPLICATION DATED 26.6.2008 AS I.A.NO.1287 OF 2008 EXT.P5 TRUE COPY OF THE ORDER DATED 3.7.2008 IN I.A.NO.1237 OF 2008 IN O.S.NO.130 OF 2004 EXT.P6 TRUE COPY OF THE ORDER DATED 3.7.2008 IN O.S.NO.130 OF 2004. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.22540 of 2008 ------------------------------- Dated this the 11th August, 2008. J U D G M E N T Petitioner is the plaintiff and respondents the defendants in O.S.No.130 of 2004 on the file of Munsiff Court, Wadakanchery. This petition is filed under Article 227 of the Constitution of India challenging Ext.P5 order, whereunder, I.A.No.1237 of 2008, an application filed under Rule 17 of Order VI of Code of Civil Procedure was dismissed by learned Munsiff. 2. The learned counsel appearing for petitioner and respondents were heard. 3. The learned counsel appearing for petitioners argued that by the amendment of the plaint, a decree for recovery of possession of portion of the plaint schedule property is sought and nature and character of the suit will not be changed, as found by learned Munsiff, and, therefore, Ext.P5 order is to be quashed. 4. Learned counsel appearing for respondents pointed out that the plea of recovery of possession was available to the plaintiff W.P.(C) No.22540 of 2008 2 even before the institution of the suit and petitioners have no case that respondents trespassed into the property subsequent to the filing of the suit, and, therefore, petitioners are not entitled to amend the plaint seeking a decree for recovery of possession. 5. By allowing amendment to convert a suit which is one for injunction to one for recovery of possession, it cannot be said that the nature and character of the suit would be altered, and, therefore, amendment cannot be allowed. The case of the petitioners is that only after Commissioner submitted the report, they could find out that a portion of the plaint schedule property having an extent of 0.52 cents has been trespassed upon by the respondents, and, therefore, the amendment application was filed. When the extent is so meagre, it cannot be said that petitioners were aware of that fact, when the suit was instituted, and in such circumstances, denial of the opportunity to amend the plaint is not justified. True, the report was submitted by the Commissioner on 21.8.2007, and there is a delay. But delay could be compensated by cost. 6. The writ petition will stand allowed and Exts.P5 and P6 orders set aside, and I.A.No.1237 of 2007 and I.A.No.1287 of W.P.(C) No.22540 of 2008 3 2008 will stand allowed and plaint is permitted to be amended, on the petitioners paying or depositing a cost of Rs.1000/= to the respondents within two weeks from today, failing which the writ petition will stand dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj. An amount of Rs.1000/= (Rupees one thousand only) has been paid as costs by the counsel for the petitioner to the counsel (Adv.Sri.D.Sreekumar) appearing for the respondents 1,3 & 4 within the stipulated time as directed in the judgment dated 11/08/2008 in WP(C) No.22540/2008, vide memo cf 13254/2008 dated 22/08/2008. Sd/- Registrar (Judicial)