IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 WP(C).No. 20353 of 2010(O) -------------------------- IA NO.2299/2010 IN OS.558/2006 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... PETITIONER(S): PETITIONER/COUNTER PETITIONERS/DEFENDANTS -------------------------------------------------------- 1. VIJAYAMBIKA ANTHARJANAM,KARTHIKA, POOVATHOOR PADINJARU MURI,KULAKKODE VILLAGE, KOTTARAKKARA,KOLLAM DISTRICT. 2. SOUMINI ANTHARJANAM, D/O.VIJAYAMBIKA ANTHARJANAM,KARTHIKA, POOVATHOOR PADINJARU MURI,KULAKKODE VILLAGE, KOTTARAKKARA,KOLLAM DISTRICT. 3. RAJAN NAIR,SARADA BHAVAN, ALUMANOOR,VELAVOOR PO, THIRUVANANTHAPURAM. 4. VASUNDARA DEVI,W/O.PURUSHOTHAMAN NAIR, KATTAKKAL VEEDU,MUTHALAKKODE,VELAVOOR, PEREPPANCODE PO,THIRUVANANTHAPURAM. 5. PREETHA,D/O.PURUSHOTHAMAN NAIR, KATTAKKAL VEEDU, MUTHALAKKODE, VELAVOOR, PEREPPANCODE PO,THIRUVANANTHAPURAM. 6. HARI PRASAD,S/O.PURUSHOTHAMAN NAIR, KATTAKKAL VEEDU, MUTHALAKKODE, VELAVOOR, PEREPPANCODE PO,THIRUVANANTHAPURAM. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): PETITIONER/PLAINTIFF ----------------------------------- G.SREEKUMAR,MEKHAM,CHANDRAMANGALAM, ANAD PO,THIRUVANANTHAPURAM-695 544. ADV. SRI.K.B.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.20353/2010 APPENDIX PETITIONERS' EXHIBITS: EXTP1 TRUE COPY OF PLAINT IN OS 558/2006 DATED 9.10.2006 EXT.P2 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE PLAINTIFF/RESPONDENT AND THE CROSS EXAMINATION IN OS 558/2006 EXT.P3 TRUE COPY OF AFFIDAVIT AND PETITION IN OS 558/2006 DATED 7.6.2010 EXT.P4 TRUE COPY OF OBJECTION FILED BY THE DEFENDANTS 1 TO 3 DATED 9.6.2010 IN OS 558/2006 EXT.P5 TRUE COPY OF THE OBJECTION FILED BY THE DEFENDANTS 5 TO 7 IN OS 558/.2006 EXT.P6 TRUE COPY OF THE ORDER ON IA NO.2299/2010 IN OS 558/2006 EXT.P7 A TRUE COPY OF THE ADDITONAL WRITTEN STATEMENT FILED BY THE PETITIONERS IN OS 558/2006 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.20353 of 2010 -------------------------------------- Dated this the 16th day of November, 2010. JUDGMENT Defendant Nos.1 to 3 and 5 to 7 in O.S.No.558 of 2006 of the court of learned Additional Munsiff, Nedumangad are the petitioners before me challenging Ext.P6, order allowing amendment of plaint. Parties are referred to as plaintiff and defendants for convenience. 2. Plaintiff/respondent sued for partition of suit property claiming that he is the son of late Geetheshwararu Pandarathil born to Indira Amma. He alleged that defendant No.1 is not the legally wedded wife of said Geetheshwararu Pandarathil and that defendant No.2 is the illegitimate child of said Geetheshwararu Pandarathil. Hence the property is to be divided among plaintiff and defendant No.2 equally. Defendants contended that plaintiff is not the son of said Geetheshwararu Pandarathil and that there was no marriage between Indira Amma and the said Geetheshwararu Pandarathil. They claimed that defendant No.1 is the legally wedded wife of said Geethshwararu Pandarathil and that defendant No.2 was born in that wedlock. Parties went into trial with the above pleadings. While so, on 11.06.2010 plaintiff filed Ext.P3, application (I.A.No.2299 of 2010) for amendment of plaint to state that his mother died on 16.01.2006 and that his mother got 1/3rd share in the property of the late Geetheshwararu Pandarathil which devolved on him. Hence plaintiff WP(C) No.20353/2010 2 wanted to amend the plaint to state that he has got 2/3rd share in the property. That application was opposed by defendants but allowed by learned Munsiff as per Ext.P6, order. That order is under challenge. 3. It is not disputed that pursuant to Ext.P6, order and amendment defendant Nos.1 to 3 and 5 to 7 have filed additional written statement taking up appropriate contentions. They have also a contention that since there is dispute regarding marital status of mother of plaintiff and defendant No.1, dispute has to be resolved in the Family Court and the civil court has no jurisdiction. The case was posted for framing additional issues on 26.06.2010. It is also the grievance of defendant Nos.1 to 3 and 5 to 7 that no additional issues regarding jurisdiction of the civil court was framed and that they are not given opportunity to adduce further evidence pursuant to amendment of the plaint. 4. So far as Ext.P6, order is concerned, on hearing counsel on both sides and going through the order I do not find reason to interfere, also at this distant point of time when petitioners/defendant Nos.1 to 3 and 5 to 7 have filed additional written statement in answer to amended plaint. So far as contention regarding lack of jurisdiction for the court is concerned, necessarily learned Munsiff has to frame an issue regarding jurisdiction (if it is raised in the pleadings) and decide that issue before proceeding in the matter further. If learned Munsiff decides that issue in favour of jurisdiction of civil court, parties WP(C) No.20353/2010 3 shall be given opportunity to adduce further evidence in the light of the contentions they have raised in the amended plaint, written statement and additional written statement including the quantum of shares. With the above observation this petition is dismissed. THOMAS P.JOSEPH, Judge. cks