IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 WP(C).No. 33959 of 2009(O) ---------------------------------- AGAINST THE ORDER DATED 03/03/2009 IN I.A.1978/09 IN OS.432/2006 of PRL.MUNSIFF COURT,THRISSUR ........................................ PETITIONER(S): -------------------- PAUL, S/O.RAYAPPAN CHUMMAR, EDAKKUNNI VILLAGE, OLLUR DESOM, THRISSUR TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): ----------------------- JOSE, S/O.THRIKKUKKARAN ANTHONY, EDAKKUNNI VILLAGE, OLLUR DESOM, THRISSUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.33959 OF 2009 -------------------------------- Dated this the 25th day of November 2009 ---------------------------------------------------------- JUDGMENT Petitioner is the defendant in O.S No.432 of 2006 on the file of Principal Munsiff Court, Thrissur. Suit filed by the respondent/plaintiff was one for declaration of right of easement over a pathway described as 'B' schedule in the plaint and also for a decree of injunction to restrain the defendant from interfering with his enjoyment over that pathway. Resisting the suit claim, the defendant filed a written statement in which disputing the 'B' schedule pathway, he also raised a counter claim for recovery of a portion of the property described as 'D' schedule as having been trespassed upon and reduced into possession by the plaintiff. Petitioner/defendant, during the pendency of the suit disposed a major portion of the property to another by way of a sale deed. Ext.P4 is stated to be the copy of that sale deed. Pursuant to such transfer, he moved an W.P.(C).No.33959 OF 2009 Page numbers application for amending his written statement. That amendment application was dismissed by the learned Munsiff vide Ext.P6 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent/plaintiff is necessary and hence it is dispensed with. It is noticed from the submissions of the counsel that the suit has already been included in the list for trial. It is also fairly conceded that previously an exparte decree had been passed against the petitioner/defendant, but later it was set aside, and an opportunity extended to the defendant to contest the suit on merits. When that be the circumstance, I find the application moved at the belated stage for amendment of the written statement whatever be W.P.(C).No.33959 OF 2009 Page numbers the worth of it could not have been entertained by the court. The learned counsel submits that before the case was included in the list, the amendment was moved before the court and no objection was raised to the amendment application by the plaintiff. In the given facts of the case, I find it is not sufficient to interfere with Ext.P6 order passed by the learned Munsiff declining the request for amendment. Though I am not impressed by the reason set out by the learned Munsiff for declining the request of amendment which is seen as based on the conclusion formed by the court that the defendant should have sought permission from the court for transferring the property when the subject matter of the transfer was covered by the lis after perusing Ext.P5 amendment application, I find, at this belated stage, the amendment sought for deserved no consideration at all. In Ext.P5 application, the defendant has sought for correcting the 'C' schedule property in his written statement so as to exclude the property which has been sold by him by way of transfer under Ext.P4 deed. Necessarily if such an W.P.(C).No.33959 OF 2009 Page numbers amendment is allowed at this stage, it will require sending out of the commissioner again to measure out the balance property alleged to be remaining with the plaintiff after Ext.P4 transfer. Needless to state that such exercise would cause further delay in the trial of the suit. Taking note that previously there was an exparte decree and the court has shown indulgence in setting aside the exparte decree and allowing the defendant to contest the suit, the amendment application moved at the belated stage require no consideration. Declining of the request vide Ext.P6 order by the court below does not warrant interference. Writ petition is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv