IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 WP(C).No. 25311 of 2009(O) -------------------------- AGAINST THE ORDER DATED 06/03/09 IN IA 1033/2009 IN OS.915/2005 of ADDL.MUNSIFF COURT, KOLLAM .................... PETITIONER: --------------- XAVIER SYMON,S/O.KURIYAN SYMON KANDATHIL VEEDU,VADAKKUMBHAGAM CHERRY, KOLLAM. BY ADV. MR.ALEX N.MATHEW (KOLLAM) MR.H.RAMANAN MR.JAMES JOSE RESPONDENTS: --------------- 1. REV.FR.DAVID,S/O.KURIYAN SYMON, JYOTHI NIKETAN CROSS JUNCTION,SASTHRI NAGAR, KADAPPAKADA, KOLLAM. 2. S.M.PETER,S/O.KURIYAN SYMON, KANDATHIL VEEDU, VADAKKUMBHAGAM CHERRY, KOLLAM. 3. REMONY ALIAS JOYS PETER, W/O.S.M.PETER, -DO- -DO- 4. RUMBAN PETER,S/O.S.M.PETER, -DO- -DO- THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.25311 of 2009 - O --------------------------------- Dated this the 14th day of September, 2009 J U D G M E N T The writ petition is filed seeking the following relief: “To set aside Ext.P5 order dated 06.03.2009 in I.A.No.1033/1999 of the Additional Munsiff Court, Kollam and allow Ext.P4 application as prayed for.” 2. Petitioner is the plaintiff in O.S.No.915 of 2005 on the file of the Additional Munsiff Court, Kollam. Suit was one for declaration of title and injunction. Plaintiff claimed title over 8 cents of property scheduled in the suit. The property comprised of a shed bearing No.MC 566. At the time when the suit came up in the special list for trial, the petitioner moved an application to amend the plaint so as to contend that the shed constructed in his property had been put up encroaching upon the property belonging to the defendant. The application was opposed to by the defendant. The learned Munsiff after hearing both sides dismissed the application by Ext.P5 order. Propriety and correctness of that order is impeached in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. W.P.(C).No.25311 of 2009 - O 2 3. I heard the counsel for the petitioner. Having regard to the submissions made and the facts and circumstances presented, I find no notice to the respondent is necessary and it is dispensed with. 4. The learned Munsiff has taken note that till the suit came up in the special list for trial, the plaintiff has no case that the shed comprised in the plaint property was constructed encroaching upon the property of the defendant. It is only after the case came up in the special list for trial the proposed amendment was mooted so as to raise allegations that the construction was made encroaching upon the property belonging to the defendant. It appears from Ext.P4 application moved by the plaintiff, no special reason was made out why the proposed amendment could not have been raised earlier. Plaintiff has not made out any exceptional circumstance to show that the proposed amendment could be entertained inspite of the bar under the proviso to rule 17 of Order VI of the Code of Civil Procedure which mandate that any amendment made after commencement of the trial is entertainable only on showing that W.P.(C).No.25311 of 2009 - O 3 despite due diligence it could not be canvassed earlier. I do not find any impropriety or illegality in Ext.P5 order passed by the learned Munsiff dismissing the amendment application which was filed belatedly. The writ petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-