IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 WP(C).No. 36296 of 2009(O) -------------------------- OS.379/2008 of IST ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): -------------------------- M. SATHI DEVI, D/O. LATE GOPALA MENON, AGED 73, MECHERIL HOUSE, BHUVANESWARI TEMPLE ROAD, POONITHURA VILLAGE, KANAYANNUR TALUK. BY ADVS. SRI.K.C.CHARLES, SRI.M.POLY MATHAI, SRI.P.CHELLAPPAN, SRI.VIMAL K.CHARLES, SMT.A.T.RENJU. RESPONDENT(S): --------------------------- 1. VISWA HINDU PARISHAD, KERALA REG. NO. 135/1978, NO. 90, CHANDRA NAGAR, PALAKKAD, REPRESENTED BY ITS GENERAL SECRETARY (STATE OFFICE, PAVAKKULAM TEMPLE COMPLEX, KALOOR, KOCHI-17, ELAMKULAM VILLAGE, KANAYANNUR TALUK). 2. REKHA, D/O. KRISHNA PANICKER, AGED ABOUT 35, KRISHNA VIHAR, VALLORE ROAD, POONITHURA VILLAGE, KANAYANNUR TALUK. 3. ROHINI, D/O. KRISHNA PANICKER, AGED ABOUT 33, KRISHNA VIHAR, VALLORE ROAD, POONITHURA VILLAGE, KANAYANNUR TALUK. 4. RESHMI, D/O. KRISHNA PANICKER, AGED ABOUT 30, KRISHNA VIHAR, VALLORE ROAD, POONITHURA VILLAGE, KANAYANNUR TALUK. Kss ..2/- ...2.... WPC.NO.36296/2009 O 5. M. SREEDEVI, D/O. KRISHNA MENON, AGED ABOUT 70, MECHERIL HOUSE, S.A. ROAD, VYTTILE, KOCHI-19, POONITHURA VILLAGE, KANAYANNUR TALUK. 6. SARALADEVI, D/O. GOPALA MENON, AGED ABOUT 70, MECHERIL HOUSE, VALLORE ROAD, POONITHURA VILLAGE, KANAYANNUR TALUK. 7. RAJALAKSHMI, D/O. GOPALA MENON, AGED ABOUT 63, MECHERIL HOUSE, BHUVANSESWARI TEMPLE ROAD, POONITHURA VILLAGE, KANAYANNUR TALUK. 8. SIVASANKARA MENON, D/O. GOPALA MENON, AGED 69, RESIDING AT 70 LINK MANNER, ORS ROAD, KOCHI-18, ERNAKULAM VILLAGE KANAYANNUR TALUK. 9. M. NANDAKUMAR MENON, S/O. GOPALA MENON, AGED 65, MECHERIL HOUSE, BHUVANESWARI TEMPLE ROAD, POONITHURA P.O. PIN 682 035. 10. GOPINATHA MENON, S/O. GOPALA MENON, AGED 65, MECHERIL HOUSE, BHUVANESWARI TEMPLE ROAD, POONITHURA P.O., PIN 682 035. 11. SREE BHUVANESWARI TEMPLE REPRESENTED BY ITS ACTING TRUSTEE SIVASANKARAMENON, TO LINK MANNER, ORS ROAD, COCHIN - 18. R1 BY ADV.SRI.M.P.ASHOK KUMAR R2 TO R5, R9 & R10 BY ADV.SMT.V.B.SANTHINI R6 BY ADV.SRI.R.MURALIDHARAN (AROOR) R8 AND R11 BY ADVS.SRI.P.B.ASOKAN, SRI.GEORGE C.VARGHESE, SMT.P.LATHA, SRI.P.B.AJOY, SRI.AJAY V.ANAND, SMT.E.K.SAJNA, SRI.VIPIN VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36296/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.379/2008. P2: COPY OF I.A.5667/2009 FOR AMENDING THE PLAINT. P3: COPY OF THE VALUATION STATEMENT DTD. 13/08/09. P4: COPY OF I.A.6502/2009 FOR AMENDING THE VALUATION PORTION OF THE SUIT. P5: COPY OF THE COUNTER AFFIDAVIT IN I.A.5667/2009. P6: COPY OF THE COMMON ORDER PASSED BY THE SUB JUDGE, ERNAKULAM IN I.A.5667/2009 AND 6502/2009 DTD. 12/11/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.BHAVADASAN, J. ------------------------- W.P (C) No.36296 of 2009 -------------------------- Dated this the 7th April, 2010 J U D G M E N T In this writ petition under Articles 226 and 227 of the Constitution of India, petitioner seeks to assail Ext.P6 order passed by the court below. 2. Petitioner is the plaintiff in O.S 327/09 before the Sub Court, Ernakulam. The suit is one for declaration of properties belong to the plaintiff including the temple property. Later, it was found that there is one more item of property which caused the petitioner/plaintiff to file an amendment application. The amendment sought is for supplying and incorporating the schedule of the property to the plaint. The court below feels that by allowing the amendment, it will change the character of suit and therefore dismissed the petition. 3. The main prayer sought for in the amendment application is to incorporate one more item of property in the plaint and for that purpose plaint need to be W.P (C) No.36296 of 2009 -2- amended. 4. Ext.P6 order is misconceived and it has been passed without application of mind The order is clearly unsustainable in law. It is not possible to understand the reason given by the court below in the impugned order. In the result, petition is allowed and Ext.P6 order is set aside. The court below is directed to take up Exts.P2 and P4 and pass fresh orders thereon, within two months from the date of re-opening of the courts after summer vacation, after hearing both sides and referring to records before it. P.BHAVADASAN, JUDGE ma A.K.BASHEER & P.Q. BARKATH ALI, JJ. ------------------------- M.A.C.A No. of -------------------------- Dated this the February/ March, 2010 J U D G M E N T Basheer,J. Barkath Ali,J. A.K.BASHEER,JUDGE P.Q. BARKATH ALI, JUDGE ma