IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 WP(C).No. 3571 of 2010(O) ----------------------------------- OS.499/2008 of MUNSIFF COURT, KOTTARAKKARA .................... PETITIONER(S): ---------------------- 1. SUMA DILIP, AGED 49, W/O.DILIP KUMAR, PEROOR VEEDU, KIZHAKKEKARA, KOTTARAKKARA, KOLLAM DISTRICT. 2. D.HARI KIRAN, AGED 24, S/O.DILIP KUMAR, PEROOR VEEDU, KIZHAKKEKARA, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENT(S): ------------------------ P.R.PREM KUMAR, AGED ABOUT 54, S/O.RAMAKRISHNA PILLA, PREMKRISHNA, KIZHAKKEKARA, KOTTARAKKARA, KOLLAM DISTRICT. ADV. DR.K.P.SATHEESAN FOR R1 SRI.K.K.GOPINATHAN NAIR FOR R1 SRI.M.R.JAYAPRASAD FOR R1 SRI.P.MOHANDAS (ERNAKULAM) FOR R1 SRI.MATHEW SUNNY FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 3571 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the plaint in O.S.No.499/2008 on the file of the Munsiff's Court, Kottarakkara. Ext.P2 :- Copy of the written statement filed by the defendants. Ext.P3 :- Copy of the petition filed by the plaintiff in I.A.No.1429/2009 in O.S.499/2008. Ext.P4 :- Copy of the objection filed by the defendants to Exhibit P3. Ext.P5 :- Copy of the order passed in I.A.No.1429/2009 dated 3.10.2009 of the Munsff's Court, Kottarakkara. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge N.K.BALAKRISHNAN, J. -------------------------------- W.P.(C) No.3571 of 2010 --------------------------------- Dated this the 7th day of January 2011 J U D G M E N T Ext. P5 order passed by the Learned Munsiff Kottarakkara is challenged in this petition filed under Article 227 of Constitution of India. That petition filed before the Munsiff's Court was for amendment of the plaint. Relevant portion of the order reads: “Heard. Allowing this prayer in the I.A. would not cause any prejudice to the interest of the counter petitioner. Moreover, the amendment of the plaint will not alter the nature of the suit. In the result, petition is allowed.” The Learned Counsel for the petitioner submits that the suit was originally laid for injunction to restrain the defendants and their men from causing in any manner, obstruction or annoyance to the plaintiff's entry, occupation, movement, trading and peaceful conduct of business of Ashok Press in W.P.(C) No.3571 of 2010 -: 2 :- the plaint schedule properties. It was contented that the property with regard to which relief was sought was not a scheduled property. The right alleged to have been derived by the plaintiff to sustain the suit for injunction was also denied in the written statement filed by the petitioner. 2. The amendment petition was filed by the plaintiff to incorporate a prayer for partition of the property, for fixation of boundary and for declaration of plaintiff’s right over the B Schedule property. That amendment was resisted by the petitioner filing a detailed counter statement in which it was stated that the amendment if allowed would change the nature and character of the suit. It was also stated by the learned counsel for the petitioner that the conspicuous absence of the averments in the affidavit filed in support of the amendment petition regarding the sufficiency of the reason which prompted the plaintiff to cause amendment of the plaint also has to be taken into account. Though detailed counter statement was stated, W.P.(C) No.3571 of 2010 -: 3 :- the learned Munsiff has chosen to pass the impugned order without giving proper reason. It is a cryptic order, according to the petitioner. 3. Sri.P.Viswanathan, the learned counsel for the petitioner submits that since the nature and character of the suit would be changed by the amendment sought for, the impugned order cannot be sustained and that, if so advised the plaintiff has to file a fresh suit. It is not necessary to go deep into the arguments addressed by the learned counsel for the petitioner in this petition. 4. The learned counsel for the respondent submits that no prejudice will be caused to the defendant if the amendment sought for is allowed. In view of the fact that the order passed by the court below lacks reasoning and as it did not meet the contentions advanced by both sides, it has to be held that the order is unsustainable. In the result, this petition is allowed. Ext.P5 order is set aside. The learned Munsiff will pass orders on the W.P.(C) No.3571 of 2010 -: 4 :- amendment petition afresh after hearing both the parties and adverting to the contentions raised by the parties with regard to the maintainability of the amendment petition. The learned Munsiff will dispose of the amendment petition within one month from the date of receipt of a copy of this judgment. N.K.BALAKRISHNAN, JUDGE. Jvt