IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 WP(C).No. 25380 of 2008(U) ------------------------------------------ (O.S.NO.153/07 OF THE MUNSIFF'S COURT, CHENGANNUR) PETITIONER: 1ST DEFENDANT: ----------------------------------------------- THOMAS CHERIAN, NALLORMALAYIL, PUTHENKAVU.P.O, CHENGANNUR TALUK, REP BY HIS POWER OF ATTORNEY CHERIAN JACOB, NALLOORMALAYIL HOUSE, -DO- -DO- BY ADV. SRI.RINNY STEPHEN CHAMAPARAMBIL RESPONDENTS: PLAINTIFF & 2ND DEFENDANT: ---------------------------------------------------------------------- 1. MARIAMMA GEORGE, MAMMOOTTIL MELETHIL HOUSE, PIRALASSERI MURI, PUTHENKAVU.P.O, MULAKUZHA VILLAGE, CHENGANNUR TALUK. 2. GEORGE VARGHESE, -DO- -DO- NOW RESIDING AT U.G.FREIGHT SERVICES L.L.C. POST BOX NO.46800, ABU DHABI U.A.E. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 25380 OF 2008 ------------------------------------------ Dated this the 22nd day of August, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging Ext.P4 order passed by Munsiff, Chengannur, whereunder I.A.1950 of 2007, an application filed under Rule 17 of Order VI of Code of Civil Procedure for permission to amend the plaint was allowed. First defendant is the petitioner and respondents the plaintiffs and other defendants. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that though Ext.P3 objection was filed by the petitioner, learned Munsiff did not consider the objection while allowing the application under Ext.P4 order. It was argued that Ext.P4 order is not a speaking order and the reason for allowing the application was not shown and therefore on the face of it, Ext.P4 order is not sustainable. Learned counsel argued that, in the plaint there is a specific admission that plaint schedule property is enclosed by boundary walls on all sides and there is no allegation in the application for WP(C)25380/08 2 amendment that subsequent to the institution of suit, defendants encroached into the plaint schedule property or obliterated the boundary warranting fixation of the boundary and in such circumstances learned Munsiff should not have allowed the application. It was also argued that first respondent is not the title holder of the property and therefore she is not entitled to get the boundary fixed. 4. It is true that Ext.P4 order is not a speaking order and the Munsiff allowed the application stating that it is necessary to avoid multiplicity of suits. The question is whether for that reason Ext.P4 order is to be interfered, if amendment sought for is just and necessary. The question whether, in the light of the plaint allegations that boundary exists, plaintiff is entitled to get the boundary fixed, is a matter to be decided in the suit and not in the application. A reading of Ext.P1 plaint shows that the dispute was in fact with regard to the eastern boundary of the plaint schedule property, as the property of the defendants lies to the east of the plaint schedule property. Under Ext,P2 application, the only amendment sought for was to add a prayer to fix the boundary of plaint schedule property. By such amendment, the character or nature of suit will not be changed. WP(C)25380/08 3 As found by the learned Munsiff, to avoid multiplicity of suits, it is necessary to permit the plaintiff to get the boundary fixed. The question whether plaintiff is entitled to a decree for fixation of the boundary, whether she is a title holder and if not whether suit is maintainable are the questions to be decided in the suit. Petitioner is at liberty to file additional written statement taking up all the defences available to him. By allowing the amendment no prejudice will be caused to the petitioner. Learned counsel appearing for petitioner also argued that first respondent is not entitled to get the boundary fixed with reference to survey plan. That is also a matter which petitioner is entitled to plead in the written statement and it is for the trial Court to decide. Writ petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-