IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 31125 of 2008(E) -------------------------- AGAINST THE ORDER DATED 16/08/2008 IN IA 2559/2008 IN OS.283/2007 of MUNSIFF'S COURT,MUVATTUPUZHA .................... PETITIONER(S): PETITIONERS/ADDITIONAL PLAINTIFFS 2 AND 3: ------------------------------------------------------------------------------------------------ 1. JAMES MATHEW, S/O. MATHEW, AGED 47 YEARS, PERUNADATHU, PERINGAZHA KARA, MARADY VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER REENA JAMES, W/O. JAMES MATHEW, AGED 41 YEARS, RESIDING AT PERUNADATHU, PERINGAZHA KARA, MARADY VILLAGE, MUVATTUPUZHA. 2. JESSY UPPAI, D/O. MATHEW, AGED 44 YEARS, PERINGAZHA KARA, MARADY VILLAGE. BY ADVS. MR.THOMAS M.JACOB, MR.G.RAJAGOPAL. RESPONDENT(S): RESPONDENTS:DEFENDANTS: -------------------------------------------------------------------------- 1. SABU, S/O. FRANCIS, PERUNADATHU, ANICADU KARA,MUVATTUPUZHA VILLAGE. 2. BABY SEBASTIAN, S/O. DEVASSY, VALIYAPARAMBIL, MUDAVANNOOR KARA, MANJALLOOR VILLAGE. R1 & R2 BY ADVS. MR.P.FAZIL, SMT.JAYASREE MANOJ, SMT.ANALAKHUSI BHASKAR, SRI.A.C.THOMAS ADHIKARAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.31125/2008 E APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.283 OF 2007 OF MUNSIFF'S COURT, MUVATTUPUZHA. P2: COPY OF WRITTEN STATEMENT FILED BY THE DEFENDANTS. P3: COPY OF PROOF AFFIDAVIT FILED BY PW – 1. P4: COPY OF CROSS EXAMINATION OF PW-1. P5: COPY OF PETITION FOR AMENDMENT NUMBERED AS I.A.2559/2008. P6: ORDER DTD. 16/08/2008 IN I.A.NO.2559/2008. P7: COPY OF POWER OF ATTORNEY DTD. 13/05/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 31125 OF 2008 E ```````````````````````````````````````````````````` Dated this the 13th day of July, 2009 J U D G M E N T The writ petition is filed seeking the following relief:- “ Set aside Ext.P6 order and allow the amendment sought in IA.2559/08 in OS.283/07 on the file of the Munsiff Court, Muvattupuzha.” 2. Petitioners are additional plaintiffs 2 and 3 in OS.No.283/07 on the file of the Munsiff Court, Muvattupuzha. They were brought in as additional plaintiffs on the death of their father, the plaintiff in the suit. Suit is one for injunction. After the examination of the plaintiff, father of the present petitioners, he passed away the next day. When his evidence was recorded, during the course of cross examination, and, then only it was known a mistake had crept in the schedule of the plaint property. In describing the southern boundary of the plaint schedule property which by inadvertence was shown as the property of Pittapillil Korachan alone. However, the defendants also had some properties on the southern boundary of the plaint property. In order WPC.31125/08 : 2 : to rectify that mistake, the petitioners, who were brought in as additional plaintiffs, moved an application for amendment under Order 6 Rule 17 CPC, which was objected to by the defendants. The learned Munsiff, after hearing the counsel on both sides, dismissed that application. Ext.P6 is the copy of that order. Propriety and correctness of that order is challenged by the petitioners invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Having regard to the submissions made and perusing Ext.P6 order passed by the learned Munsiff, I find the application for amendment moved by the plaintiffs was turned down for the reason it was belated. I am afraid that the learned Munsiff has not taken note of the purport and spirit behind the provision of Order 6 Rule 17 CPC, which empower the court to allow amendment to a pleading of a party at any stage of a suit or proceeding. The primary question to be looked into when an amendment is sought for is whether that is required for determining the real question of controversy between the parties. Of course by the proviso added to that Rule under WPC.31125/08 : 3 : 2002 amendment, it is imperative for the court to examine whether the amendment requested for could have been applied for earlier and in that enquiry the question of diligence of the party may also arise for consideration. However, in the given facts of the case, it is evident that the amendment sought for was only to the effect of rectifying a mistake with respect to one of the boundaries of the plaint schedule property. Such a mistake in all probabilities might have been caused by inadvertence. Probably, if there was due diligence on the part of the plaintiffs, it would have come to their notice earlier. In appreciating the question whether the amendment is to be allowed, and is it necessary for resolving the controversy between the parties, the injury likely to be caused to the opposite party also arise for consideration. In doing so, I find no prejudice is likely to be caused to the defendants by the amendment sought for by the plaintiffs in correcting the description of the plaint property. Ext.P6 order of the court below is set aside allowing the amendment sought for by the plaintiff. The court below shall permit the plaintiffs to carry out the amendment in the plaint, and also the defendants to file an additional written WPC.31125/08 : 4 : statement, if need be. Since recording of the evidence of the case has already commenced, the court below shall give top priority to the hearing of the suit and dispose it, as expeditiously as possible. Writ petition is disposed. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge