IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 WP(C).No. 33037 of 2008(G) -------------------------------------- OS.210/2004 of MUNSIFF'S COURT, MUVATTUPUZHA .................... PETITIONER(S): ---------------------- THOMAS, S/O. CHACKO, AGED 57 YEARS, PULLAN HOUSE, KOZHIPPILLY KARA, VARAPPETTY VILLAGE, KOTHAMANGALAM TALUK. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENT(S): ------------------------- 1. LINCY GEROGE, W/O. GEORGE, AGED ABOUT 31 YEARS, MALIKUDIYIL HOUSE, MALAYINKEEZHU KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. 2. GEORGE, S/O. LATE VARKEY, AGED 33 YEARS, MALIKUDIYIL HOUSE, MALAYINKEEZHU KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. 3. BRIJITHA, W/O. LATE VARKEY, AGED ABOUT 70 YEARS, MALIKUDIYIL HOUSE, KOZHIPPILLY KARA , VARAPETTY VILLAGE, KOTHAMANGALAM TALUK. 4. JOHN, S/O. LATE VARKEY, AGED ABOUT 45 YEARS, MALIKUDIYIL HOUSE, KOZHIPPILLY KARA VARAPETTY VILLAGE, KOTHAMANGALAM TALUK. 5. AVARACHAN, S/O. LATE VARKEY, AGED ABOUT 40 YEARS, MALIKUDIYIL HOUSE, KOTTAPPADY KARA, KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK. 6. JAMEELA, W/O. SHAJI, AGED ABOUT 33 YEARS KODIYATTU HOUSE, NEAR BISHOPS HOUSE KOTHAMANGALAM. 7. KAMILA, W/O. JOSHI, AGED ABOUT 30 YEARS, VARAPPILLY HOUSE, KOLLIKAD, NEAR POLICE STATION, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM. R1 & R2 BY ADV. SRI.C.DILIP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 33037/2008-G APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE DATED 15/02/2008 ISSUED BY THE VILLAGE OFFICER VARAPETTY VILLAGE. EXT.P2: COPY OF THE PLAINT IN O.S. NO.210/2004 DATED 14/06/2004. EXT.P3: COPY OF THE COMMISSION REPORT AND SURVEY PLAN DATED 20/03/2006. EXT.P4: COPY OF THE ORDER DATED 07/06/2007 IN I.A. NO.1053/2006 IN O.S. NO.210/2004 OF THE MUNSIFF'S COURT, MUVATTUPUZHA. EXT.P5: COPY OF THE JUDGMENT DATED 16/07/2007 IN WP(C) NO. 18291/2007 OF THE HONOURABLE HIGH COURT OF KERALA. EXT.P6: COPY OF THE JUDGMENT DATED 25/02/2008 IN WP(C) NO. 6426/2008 OF THE HONOURABLE HIGH COURT OF KERALA. EXT.P7: COPY OF THE I.A. NO.1581/2008 DATED 26/05/2008 OF MUNSIFF'S COURT, MUVATTUPUZHA. EXT.P8: COPY OF THE ORDER DATED 26/06/2008 IN I.A. NO.1581/2008 AND I.A. NO.1592/2008 IN O.S. NO.210/2004 OF THE MUNSIFF'S COURT. EXT.P9: COPY OF THE INTERIM REPORT DATED 07/10/2008 OF THE ADVOCATE COMMISSIONER. EXT.P10: COPY OF THE I.A. NO.739/2008 IN O.S. NO.81/2004 DATED 23/02/2008 OF THE MUNSIFF'S COURT, MUVATTUPUZHA. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. THOMAS P. JOSEPH, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 33037 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 23rd day of July, 2010 JUDGMENT Petitioner in O.S. No. 210 of 2004 of the Court of learned Munsiff, Muvattupuzha challenges Ext.P8, common order dismissing I.A. Nos.1581 and 1592 of 2008 in O.S. No.210 of 2004. 2. Petitioner claimed to have purchased 9 cents of land, as per three documents executed by defendant No.3, out of a total extent of 1.55 acres belonging to defendant No.3. Defendant No.3 had sold the rest of the property in piecemeal to different persons. Defendant No.1, son of defendant No.3, got 34 cents of land. Defendant No.2 filed O.S. No.81 of 2004 for fixation of boundary and injunction against petitioner/plaintiff, defendant No.3 and others. He claimed that as per document of title executed in his favour by defendant No.3, his property extended to the 9 cents over which petitioner/plaintiff claimed title and possession. In view of that stand of defendant No.2, petitioner filed W.P.(C) No. 33037/2008 2 O.S. No.210 of 2004 for declaration of title over 9 cents belonging to him and for consequential injunction. Learned Munsiff directed joint trial of the suits. Advocate Commissioner inspected the property and submitted his report. Defendant No.2 filed objection to that report and application to set aside the same. No order was passed on the said application. After recording evidence, learned Munsiff took up the matter for judgment. Learned Munsiff allowed the application filed by defendant No.2 and set aside the report and plan submitted by the Advocate Commissioner. That order was challenged by petitioner/plaintiff in this Court in W.P.(C) No. 18291 of 2007. This Court vide Ext.P5 set aside that order, but remitted the report and plan to the Advocate Commissioner for fresh measurement with the assistance of a Taluk Surveyor. At that stage, petitioner/plaintiff was advised to withdraw his suit and file a fresh suit. Accordingly, he filed application under Order XXIII rule 1 of the Code of Civil Procedure seeking permission to withdraw O.S. No.210 of W.P.(C) No. 33037/2008 3 2004 with liberty to file a fresh suit. Learned Munsiff allowed the application in part and petitioner was permitted to withdraw the suit but without liberty to file a fresh suit. Petitioner challenged that order in W.P.(C) No. 6426 of 2008. This Court by Ext.P6 judgment refused to interfere with the order of learned Munsiff rejecting the prayer for request for permission to file a fresh suit, but dismissed the application itself, observing that it is open to petitioner/plaintiff to seek amendment of plaint and impleadment if circumstances warranted. In view of that direction, petitioner filed applications I.A. Nos. 1581 and 1592 of 2008 for amendment of the suit and impleadment respectively. The amendment sought for is that 9 cents of land, which petitioner claimed to have acquired as per three documents executed by defendant No.3, was originally shown in the plaint schedule as three items and by amendment he wanted the same to be clubbed into one item. Another amendment sought for is to measure entire 1.55 acres which originally belonged to defendant No.3, and W.P.(C) No. 33037/2008 4 the various assignees were to be impleaded as parties to the suit for effective adjudication of the dispute. 3. The applications were opposed by contesting defendants. Learned Munsiff, as per Ext.P8 order went into the merits of the case and after referring to the documents and other evidence, dismissed the applications. That order is challenged in this writ petition. Learned counsel for petitioner contends that learned Munsiff should not have gone into the merit of the amendment sought for. It is also contended that amendment was sought for, in the light of the observation made in Ext.P6 judgment, and, in the circumstances learned Munsiff ought not have dismissed the applications. Learned counsel for contesting defendants argued that as per the document of title relied on by petitioner, he actually got only three cents situated towards western corner of 34 cents belonging to defendant No.2. It is also contended that if amendment sought is allowed, it will alter the nature of the suit. Further argument is that though amendment was applied for after W.P.(C) No. 33037/2008 5 commencement of trial, there is no compliance with the proviso to Order VI Rule 17 of the Code of Civil Procedure. 4. It is not disputed that petitioner and defendant No.2 trace title to defendant No.3 who owned 1.55 acres. Amendment sought for in O.S. No.210 of 2004 is to delete prayer for declaration of title and to incorporate a relief of fixation of boundary of the 9 cents. That property has to be identified. For that, entire 1.55 acres has to be measured. For the said purpose it is necessary that all the assignees of defendant No.3 regarding the said 1.55 acares are impleaded in the suit. Another amendment sought for is for consolidation of the three schedules (regarding 9 cents covered by three documents) one schedule. Amendment does not in any way change the nature or character of the suit and at any rate no prejudice is caused to the defendants. Learned Munsiff has gone wrong in going into the merit of the claim sought to be incorporated by amendment. 5. Then the question is whether proviso to Order VI W.P.(C) No. 33037/2008 6 rule 17 of the Code of Civil Procedure is attracted. This Court in Ext.P6 judgment has granted permission to the petitioner to seek appropriate amendment and impleadment. Even if it is assumed that petitioner is required to show due diligence in the matter of seeking amendment, I am persuaded to think that circumstances warrant amendment. It is after the suit was taken for judgment that learned Munsiff found that application filed by defendant No.2 to set aside commission report was not disposed of, that application was allowed and report and plan were set aside. That necessitated re-opening of the case and it is in that situation that petitioner sought for withdrawal of the suit which culminated in Ext.P6 judgment and this Court permitted petitioner to file appropriate application for amendment. Proviso to Order VI rule 17 of the Code is satisfied. On hearing counsel on both sides and perusing the records I am satisfied that court below went wrong in disallowing amendment and impleadment. Resultantly, the writ petition is allowed and Ext.P8 order is W.P.(C) No. 33037/2008 7 set aside. I.A. Nos.1581 and 1592 of 2008 are allowed. Petitioner/plaintiff shall carry out the amendment within 14 days from the date of receipt of a copy of the judgment in the court below or within such time as may be extended by learned Munsiff on application. It is made clear that contesting defendants will have the right to file additional written statement in answer to the amended plaint. THOMAS P. JOSEPH, JUDGE. mn.