IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 WP(C).No. 18476 of 2008(Y) -------------------------- AGAINST THE ORDER IN IA.476/2008 IN AS.75/2004 of SUB COURT, VADAKARA .................... PETITIONER: ------------ SATHI, W/O.SOMAN, AGED 32 YEARS, CHULLIYIL HOUSE, VADAKARA AMSOM DESOM, VADAKARA TALUK. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENTS: ------------- THURITHIMMEL BASHEER, PULIYULLA PARAMBATH, P.O.PATHIYARAKKARA, PALAYAD AMSOM, PATHIYARAKKARA DESOM, VADAKARA TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.18476 of 2008 ------------------------------- Dated this the 25th June, 2008. J U D G M E N T Petitioner is the plaintiff in O.S.No.99 of 2002 and the appellant in A.S.No.75 of 2004 before Sub Court, Vadakara. The suit was filed for permanent prohibitory injunction restraining the respondents from causing obstruction to the way to the plaint schedule property. No declaration of right of way was sought in the plaint. Ext.P1 plaint also shows that what was claimed in the plaint was that there exists a public way to the north and east of the plaint schedule property, which is being used for the last several years, and that way is being maintained by the Municipality and respondent is not entitled to cause any obstruction to that way. 2. Learned Munsiff after recording the evidence dismissed the suit and that judgment is challenged in A.S.No.75 of 2004. In the appeal, petitioner filed I.A.No.476/2008, an application under Order VI Rule 17 of Code of Civil Procedure to amend the plaint incorporating the way claimed in the plaint, as plaint 'B' schedule W.P.(C) No.18476/2008 2 property, and to insert other necessary recitals in the plaint. Under Ext.P4 order, learned Sub Judge dismissed the petition. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel is that court is competent to allow amendment of pleadings at any stage of the suit, including appellate stage, and proviso to Rule 17 of Order VI of Code of Civil Procedure, will not prevent appellate court from permitting plaintiff to amend the plaint, if it is necessary for a just decision of the case, and in such circumstances, application to amend the plaint should have been allowed. The learned counsel further argued that by mistake and omission on the part of the counsel of the petitioner, plaint does not disclose the details of the way over which the decree was sought, and in such circumstances, learned Sub Judge should have allowed the application. W.P.(C) No.18476/2008 3 On hearing the learned counsel and going through the the plaint, proposed amendment sought, and Ext.P4 order, I do not find any illegality or irregularity warranting interference in the impugned order, in exercise of the powers of this Court under Article 227 of the Constitution of India. In such circumstances, the petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.