IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 WP(C).No. 32212 of 2008(I) -------------------------- ORDER IN IA NO.8135/2008 IN OS.339/2006 of II ADDL.MUNSIFF COURT,TRIVANDRUM .................... PETITIONER(S): --------------- SEETHA W/O.P.M.SENAN, RESIDING AT MIDHILA, MODEL ENGINEERING COLLEGE ROAD, THRIKKAKKARA P.O., KOCHI 21. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) RESPONDENT(S): --------------- 1. ABDUL REHMAN, S/O.SAINULABDEEN, TC.49/397(1), KUTHUKALLUMOOTTIL, MANACAUD P.O., THIRUVANANTHAPURAM. 2. NABEESATH BEEVI, W/O.ABDUL REHMAN, RESIDING AT T.C.49/397(1), -DO- -DO- 3. SURENDRAN, S/O.VELUKUTTY PANICKER, 'SWARALAYAM', NEAR MANACAUD P.O. THIRUVANANTHAPURAM. 4. SARATHCHANDRAN, S/O.BHASKARAN NAIR, SUSANTHI, K.P.9/496 CHETTIKUNNU, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 5. CHRISTOPHER DICRUZ, S/O.RAIMOND DICRUZ, RESIDING AT 'KUNNU BUNGLOW', PULIKUZHIKONATH, MEDICAL COLLEGE P.O., KADAKAMPALLI VILLAGE, THIRUVANANTHAPURAM (DIED) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.32212 of 2008 I -------------------------------------- Dated this the 3rd day of November, 2008. JUDGMENT Heard counsel for petitioner. 2. Petitioner who is the plaintiff in O.S.No.339 of 2006 of II Additional Munsiff’s court, Thiruvananthapuram has filed this Writ Petition challenging Ext.P19, order dated 13.10.2008 in I.A.No.8139 of 2005 in O.S.No.339 of 2006 refusing amendment to incorporate a prayer to set aside certain documents said to be executed by the fifth respondent and on the strength of that, by defendants 1 to 4 allegedly concerning the suit property. According to the petitioner, the suit property originally belonged to the fifth respondent who assigned the same in favour of Sarojini, mother of the petitioner as per Ext.P1, sale deed No.1463 of 1971. Sarojini settled the property in favour of the petitioner. I.A.No.8135 of 2008 is filed to incorporate the prayer to set aside the documents said to be executed by the fifth defendant/fifth respondent after execution of Ext.P1, in favour of the fourth respondent/fourth defendant and the subsequent documents said to be executed by the fourth defendant. Learned Munsiff observed that it is not necessary to set aside the documents and that at the most, petitioner can include a prayer that the said documents are not binding on her. Aggrieved by the order petitioner has come up in writ proceeding. Learned counsel contended that it was not necessary for the learned Additional Munsiff to go into the merit of the claim sought to be incorporated by amendment. WP(C) No.32212/2008 2 3. Though, it is true that it is not necessary for the court to go in depth into the merit of the claim sought to be incorporated by amendment, it is open to the court to consider whether the amendment sought for is bona fide and do arise in the case. It is averred in paragraphs 8 to 12 of the plaint about the attempt of the respondents/defendants to create documents fraudulently so as to affect the right of the petitioner/plaintiff over the suit property. Learned Additional Munsiff is justified in observing that it is not necessary to set aside the documents allegedly executed by the defendants/respondents. It is also to born in mind that petitioner has sought for a declaration of her title and possession over the property and while considering that prayer the trial court has to consider whether title claimed by the petitioner over the suit property stands. It is also open to the petitioner to show that after Ext.P1 sale deed No.1463 of 1971 dated 21.6.1971 executed by the fifth respondent, the latter could not validly assign right over the property to anybody. Learned Additional Munsiff has observed that, at the best, petitioner can include a prayer that the documents allegedly executed by the respondents are not binding on her. Learned Additional Munsiff has protected that right of the petitioner while dismissing I.A.No8135 of 2008. If that be so, there is no reason why this Court should interfere with the order under challenge. Writ Petition is accordingly, disposed of. THOMAS P.JOSEPH, JUDGE. WP(C) No.32212/2008 3 cks