IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 WP(C).No. 24268 of 2010(O) -------------------------- AGAINST THE ORDER IN IA.1032/2009 IN OS.65/1978 of MUNSIFF COURT, ETTUMANOOR .................... PETITIONERS: --------------- 1. OUSEPH CHACKO, PONTHALLOOR PARAMPIL, RESIDING AT AMMANCHERY THADAMPURAYIDATHIL, MANNANAM KARA, ATHIRAMPUZHA VILLAGE. 2. PHILOMINA CHACKO, W/O.OUSEPH CHACKO, DO. DO. BY ADV. SRI.P.R.VENKETESH RESPONDENTS: --------------- 1. JOSE PHILIP @ JOSEPH THAYYIL, ONASSERIL MANNANAM KARA, ATHIRAMPUZHA VILLAGE, NOW RESIDING AT 22 - BONAV CENTURE ABC, ARDSLEY NEW YORK - 10502. 2. PHILIP LUKA, THAYYIL ONASSERIL, MANNANAM KARA, ATHIRAMPUZHA VILLAGE, PIN-686 001. 3. CHACKO ANNA, D/O.OUSEPH CHACKO, RESIDING AT AMMANCHERY THADAMPURAYIDATHIL, MANNANAM KARA, ATHIRAMPUZHA VILLAGE, PIN-686 001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.24268 of 2010 --------------------------------------- Dated this 03rd day of August, 2010 JUDGMENT This litigation started in the year 1978 with respondents filing O.S.No.65 of 1978 in the court of learned Munsiff, Ettumanoor seeking a declaration of title, prohibitory and mandatory injunction. Mandatory injunction prayed for was to direct petitioners to remove the structure allegedly put up in item No.2 of plaint schedule. The suit was decreed against which petitioners filed A.S.No.80 of 1987. That appeal was allowed by way of remand as per order dated 06-07-1991. In the meantime there was a C.M appeal also. After about 18 years of the remand respondents filed Ext.P3, application on 07-11-2009 for amendment of plaint to incorporate a prayer for recovery of possession. Petitioners opposed that application vide Exts.P4 and P5 objections. Learned Munsiff has allowed the application vide Ext.P6, order. That order was challenged in W.P.C.No.37703 of 2009. This court disposed of the writ petition permitting petitioners to seek review of Ext.P6, order. On the request of petitioners learned Munsiff reviewed Ext.P6, order but after W.P.C.No.24268 of 2010 : 2 : hearing both sides again allowed Ext.P3, application for amendment of plaint by Ext.P8, order. That order is under challenge in this writ petition. Learned counsel for petitioner contends that relief sought to be incorporated by amendment is obviously barred by limitation and in such a situation court below ought not have allowed Ext.P3. It is also contended that if the plaint as requested for is amended that would change the nature and character of the suit. 2. No doubt the suit is filed in the year 1978 and Ext.P3, application for amendment is preferred in the year, 2009. Question is whether relief sought to be incorporated by amendment as on date amendment was requested for was barred by limitation and if so, it could be incorporated by amendment. Learned counsel has placed reliance on the decision in T.N Alloy Foundary Co. Ltd. Vs. T.N Electricity Board & Ors. (2004(3) SCC 392). It is argued that there is no reason why notwithstanding the bar of limitation court below allowed respondents to amend the plaint particularly for after 18 years appellate court remanding the case as per judgment dated 06-07-1991. 3. The decision relied on by learned counsel states that W.P.C.No.24268 of 2010 : 3 : the court would as a rule decline to allow amendments, if fresh suit on the amended claim would be barred by limitation on the date of application and that the said fact is one of the factors to be taken into account in exercising the discretion as to whether amendment should be ordered. It is also stated that the fact that relief sought for by amendment is barred by limitation does not affect power of the court to order amendment. The same view has been taken in previous decision also. In A.K Guptha & Sons Ltd. Vs. Damodar Valley Corporation (AIR 1967 SC 96) it is held, “where however the amendment does not constitute the addition of a new cause of action or raised a different case but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after the expiry of statutory period of limitation.” 4. In yet another decision C.J Leach & Co. Ltd. Vs. M/s.Jardine Skinner & Co. (AIR 1957 SC 357) the Supreme Court held that the fact that a fresh suit on the amended claim would be barred by limitation on the date of application, though relevant is only a factor to be taken into account in exercise of W.P.C.No.24268 of 2010 : 4 : the discretion as to whether amendment should be ordered and does not affect the power of the court to order it if it is required in the interest of justice. 5. In the present case as I stated from Ext.P1 there is a prayer for recovery of possession over the suit property and mandatory injunction to direct petitioners to remove the disputed structure from item No.2. In other words prayer for declaration of title and mandatory injunction has already been made and in that situation respondents thought that they should approach the matter in different manner (as stated in A.K Guptha & Son's case (supra)) and instead of the prayer for mandatory injunction they wanted a prayer for recovery of possession to be incorporated. It is not as if basic requirements to seek recovery of possession is absent in the plaint. It is not as if respondent wanted their title to be declared at a time as the learned counsel for petitioners say, relief of declaration would have been barred by limitation. When the basic requirements to constitute the relief sought to be incorporated by amendment is already there in the plaint no question of limitation of seeking such relief by amendment arose. I stated that prayer of declaration of title and mandatory injunction have already made in the plaint and it is at W.P.C.No.24268 of 2010 : 5 : that time respondent thought of a different approach to the situation by seeking relief of recovery of possession. In the circumstance I am not persuaded to think that prayer sought to be incorporated by amendment had become time barred and hence learned Munsiff was not correct in allowing the amendment. If it is assumed that prayer for recovery of possession is time barred, having regard to the facts and circumstances of the case including declaration of title and mandatory injunction having already been prayed for, I am not inclined to think that it was an illegality on the part of learned Munsiff to have allowed prayer for recovery of possession. I find no reason to interfere. Writ petition is dismissed (THOMAS P JOSEPH, JUDGE) Sbna/-