IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 19711 of 2009(O) -------------------------- OS.350/2008 of I ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): ------------------------- ELIAMMA,D/O.ELI,RESIDING AT KUNNATHUKUZHI HOUSE,KANAYANNUR VILLAGE & TALUK, THALAKKODE,MULANTHURUTHY,ERNAKULAM. BY ADVS. MR.N.RATHEESH, SMT.SUMA RATHEESH. RESPONDENT(S): ---------------------------- 1. SUNNY OUSEPH,S/O.OUSEPH & MARIAM, RESIDING AT PADIPPURAKKALL HOUSE, PANGARAPALLY P.O.,MULANTHURUTHY,ERNAKULAM. 2. LEELA,D/O.OUSEPH & W/O.JOHN, SRAMBIKAL HOUSE,KAVARA P.O.,AGALI (VIA), MANNARKKAD P.O.,PALAKKAD DISTRICT. 3. P.J.GEORGE,S/O.OUSEPH, PADIPPURAKKAL HOUSE,KAVARA P.O., AGALI (VIA),MANNARKKAD P.O.,PALAKKAD DISTRICT. 4. VARGHESE,S/O.PAILY,THANNIKKAL THADATHIL HOUSE,KANAYANNUR VILLAGE & TALUK, MULANTHURUTHY,ERNAKULAM. 5. KARTHIAYANI,D/O.ACHUTHAN, VADAKKANCHERIKKAL HOUSE,NOW RESIDING AT KUNNATHUKUZHI HOUSE,KANAYANNUR VILLAGE & TALUK, THALAKKODE P.O.,MULANTHURUTHY,ERNAKULAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 19711 OF 2009 O ```````````````````````````````````````````````````` Dated this the 14th day of July, 2009 J U D G M E N T Petitioner is the plaintiff in OS.No.350/08 on the file of the I Additional Sub Court, Ernakulam. Suit is one for recovery of possession. The 5th defendant/ the 5th respondent in the writ petition, alone contested the suit filing a written statement. After settling of the issues, the plaintiff moved applications, one for amendment, another for appointment of a Commission and the third for impleading some additional parties in the suit contending that in case the court finds that she is not entitled to recovery of possession sought for in the present suit, her right, title and possession over another property having an extent of 27 cents be regularised and declared in the very same suit. The application for appointing a Commission was also moved to identify the aforesaid property in respect of which declaration is sought for. Her case for the relief so claimed was on the basis that there was some misconception as to the title under which the properties alloted under a partition deed and in order to have an effective WPC.19711/09 : 2 : adjudication for the relief so claimed, she moved the other application for impleadment of some additional parties to the suit, who are the legal heirs of the sharers under the partition deed. The applications were objected to by the 5th respondent filing written objections. The learned Sub Judge, after hearing the counsel on both sides, dismissed all the applications by separate orders. Those orders are 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 is necessary, and it is dispensed with. The first question to be considered is whether the plaintiff can seek for the amendment proposed advancing a case that there was a misconception over the title deeds and also possession which devolved upon the parties under such deeds in a suit already instituted for recovery of possession in respect of another property. Suit property is also covered by the partition deed in respect of which recovery was WPC.19711/09 : 3 : claimed in the present suit is not sufficient to alter its character to a different nature to claim additional relief claimed by way of amendment on the basis of a different cause of action which has no identity with the cause of action for the suit already instituted. Such being the position, there is no impropriety in the orders passed by the learned Sub Judge in dismissing the applications moved by the plaintiff for amendment, appointment of Commission and adding additional parties in the suit. In case the plaintiff apprehends that the suit for recovery of possession is likely to fail on account of some formal defects in the plaint, it is open to him to withdraw the suit. Reserving the right of the plaintiff to move such application for withdrawal if need be and the learned Munsiff to consider any such application if moved taking note of the facts and circumstances involved and in accordance with law, the writ petition is closed. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge