IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 WP(C).No. 34735 of 2009(O) ------------------------------------- OS.75/2006 of MUNSIFF COURT, HOSDRUG .................... PETITIONER(S): ---------------------- KAYIKANDATHIL NARAYANAN, S/O.KOTHOT KARIYAN POOJARI, KOTHOTTU, MADIKAI VILLAGE, HOSDURG TALUK, P.O.KANHIRAPOYIL, KASARAGOD DISTRICT. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): ------------------------- 1. KALLYANI, D/O.VELLUNGAN, KOTHOTTU, MADIKAI VILLAGE, HOSDRUG TALUK, P.O.KANHIRAPOYIL, KASARAGOD DISTRICT. 2. AJITHA, D/O.KALLYANI, KOTHOTTU, MADIKAI VILLAGE, HOSDRUG TALUK, P.O.KANHIRAPOYIL, KASARAGOD DISTRICT. R1 & R2 BY ADV. SRI.T.K.VIPINDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34735 of 2009(O) APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 75/2006 MUNSIFF'S COURT, HOSDRUG. P2:- COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN OS. 75/2006, MUNSIFF'S COURT, HOSDRUG P3:- COPY OF THE REPORT AND PLAN DTD. 20.3.2009, SUBMITTED BY THE COMMISSIONER IN OS. 75/2006. P4:- COPY OF THE REPORT AND PLAN, DTD. 23.9.2009, SUBMITTED BY THE ADVOCATE COMMISSIONER IN OS. 75/2006. P5:- COPY OF THE AFFIDAVIT AND PETITION (IA. 2286/2009 IN OS. 75/2006) FILED BY THE PETITIONER. P6:- COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN IA. 2286/2009 IN OS. 75/2006. P7:- COPY OF THE ORDER, DTD. 17.11.2009 IN IA. 2286/2009 IN OS. 75/2006, MUNSIFF'S COURT, HOSDRUG. TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 34735 OF 2009 ------------------------------- DATED THIS THE 20TH DAY OF OCTOBER, 2010 JUDGMENT Plaintiff in O.S.No.75/2006 on the file of the Munsiff's Court, Hosdrug is the petitioner. Defendants are the respondents herein. The writ petition is filed seeking to set aside Ext.P7 order passed by the said court in I.A.No.2286/2009 filed under order VI Rule 17 CPC for amendment of the plaint. The court below dismissed the IA stating that if the amendment is allowed, it will change the nature and character of the suit and also will cause serious prejudice to the defendants. 2. The suit was filed for permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property. The property scheduled in the plaint is 1.75 acres lying within the definite boundaries. Exts.P3 and P4 are the Commissioner's report and plan. In Ext.P3 the Commissioner reported that on measurement it was found that the property is -2- WP(C).No.34735/2009 having an extent of 1.95 acres. On the basis of the report and plan submitted by the Commissioner, the plaintiff wanted to amend the plaint so as to change the extent of the property as 1.95 acres instead of 1.75 acres shown in the plaint. The suit was filed for perpetual injunction describing the extent of property as 1.75 acres. The plaintiff wanted to amend the plaint and change the extent of property as 1.95 acres based on the Commissioner's report. In fact the amendment is necessitated due to the change in the extent shown in Exts.P3 and P4 reports submitted by the Commissioner. 3. I do not think that the amendment will change the nature and character of the suit and will cause serious prejudice to the defendants. In the facts and circumstances of the case Ext.P7 order is set aside. I.A.No.2286/2009 is allowed. The petitioner shall carry out the amendment. Writ Petition is allowed. HARUN-UL-RASHID, Judge. kcv.