IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 20374 of 2007(A) -------------------------- AGAINST THE ORDER DATED 13/04/2007 IN IA.2721/07 IN OS.476/2005 of I ADDL.M.C.,TRIVANDRUM .................... PETITIONER(S): 5TH COUNTER PETITIONER/5TH DEFENDANT ---------------------------------------------------- N.PADMAVATHY, D/O. NARAYANAN, AGED 61 YEARS, TC 25/847, VISHAKH, THYCADU, THIRUVANANTHAPURAM. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): PETITIONER/RESPONDENTS 1 TO 4/PLAINTIFF/DEF.1TO4 ---------------------------------------------------------------- 1. N.GANESHAN, S/O. NARAYANAN, AGED 64 YEARS, RESIDING AT TC 25/846(3), L.N.COTTAGE, THYCADU P.O., THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR, DEPARTMENT OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 4. CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 5. THE MANAGING DIRECTOR, THE KERALA WATER AUTHORITY, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SMT.AMBIKA DEVI, SC, KWA FOR R.5 SRI.M.BALAGOVINDAN FOR R1 SRI.M.R.SASITH FOR R1 GOVT. PLEADER SRI.PUZHAKKARA MUHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.C.NO.20374/2007 PETITIONER'S EXHIBITS EXT.P1 PHOTOCOPY OF THE PLAINT IN O.S.NO.476/2005 OF MUNSIFF COURT THIRUVANANTHAPURAM. EXT.P2 PHOTOCOPY OF THE WRITTEN STATEMENT IN O.S.NO.476/2005 OF M.C. , THIRUVANANTHAPURAM EXT.P3 PHOTOCOPY OF THE WRITTEN STATEMENT OF SECOND DEFENDANT DATED 18-7-2005 EXT.P4 PHOTOCOPY OF THE AMENDMENT APPLICATION DATED 14-3-07 EXT.P5 PHOTOCOPY OF THE OBJECTION FILED BY THE FIFTH DEFENDANT IN AMENDMENT APPLICATION. EXT.P6 PHOTOCOPY OF THE OBJECTION FILED BY FOURTH DEFENDANT IN AMENDMENT APPLICATION EXT.P7 PHOTOCOPY OF THE ORDER IN I.A.NO.2721/2007 IN O.S.NO. 476/2005 OF ADDL. MUNSIFF ( R.C.C.) , THIRUVANANTHAPURAM DATED 13-4-2007 RESPONDENT'S EXHIBITS EXT.R4(A) TRUE PHOTOCOPY OF THE I.A.NO.7704/2005 DATED 3-8-05 EXT.R4(B) TRUE PHOTOCOPY OF THE ORDER DATED 20-6-2006 OF III ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM IN I.A.NO.7704/2005 EXT.R4(C) TRUE COPY OF THE LOCATION PLAN PREPARED BY THE ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, SEWERAGE SUB DIVISION, KURIATHY THIRUVANANTHAPURAM EXT.R4(D) THE PHOTOCOPY OF THE JUDGMENT IN W.P.C.NO. 22882/2006 DATED 9-10-2006 /True Copy/ P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 20374 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2009 JUDGMENT Petitioner is the 5th defendant in O.S.No.476/2006 on the file of Additional Munsiff Court, Thiruvananthapuram. Petitioner is the sister of the first respondent/plaintiff. The plaintiff filed a suit before the Munsiff Court seeking a permanent prohibitory injunction restraining the petitioner herein from making any further construction over a 50 year old mud sewage pipe line, which is passing underneath the property of the petitioner herein and also for a mandatory injunction directing defendants 1 to 4 to demolish the plaint B schedule construction and to declare the title of the plaintiff over the sewage pipeline. First respondent is the petitioner in the suit. The second respondent /first defendant is the state presented by the Chief Secretary. The third respondent/second defendant is Director, Department of Collegiate Education. The fourth respondent/third defendant is Corporation of Thiruvananthapuram. The fifth respondent /fourth defendant is Kerala Water Authority. WPC.NO.20374/07 Page numbers 2. The plaintiff filed I.A.No.2721/2007 seeking amendment of the plaint by adding a new prayer to pass a mandatory order of injunction directing the fourth respondent to give necessary steps to remove the D schedule block in the plaint C schedule pipe line. The Munsiff allowed the petition by Ext.P7 order dated 13-04-2007. The writ petitioner challenges the said order in this writ petition. According to him, such a prayer will alter the entire character of the suit. 3. On going through the impugned order, it is seen that the Munsiff has allowed the application on the ground that the amendment sought for will not alter the basic character of the suit . I am unable to agree. The suit was for a declaration of title of the plaintiff over the plaint schedule property and for a permanent prohibitory injunction restraining the petitioner herein from making any further construction over a 50 year old mud sewage pipe line, which is passing underneath the property of the petitioner herein and also for a mandatory injunction directing the defendants 1 to 4 to demolish the plaint B schedule construction. The amendment sought for is to pass a mandatory order of injunction directing the fourth respondent to give WPC.NO.20374/07 Page numbers necessary steps to remove the D schedule block in the plaint C schedule line which is entirely a new prayer and will alter the nature of the suit. It will have a different cause of action in the suit. The 4th respondent water authority has filed a counter affidavit to the effect that the line in question is a very old mud pipe, that even if block occurs, it cannot be rectified and it has suggested for having an alternate sewerage line through the pathway to the petitioner's house. The 1st respondent/plaintiff filed I.A.No.7704 of 2005 before the trial court claiming the very same relief which the learned Munisff had refused to grant by order dated June 20, 2006. Challenging the said order, the 1st respondent/plaintiff has filed W.P.(C) No.22882 of 2006 and this Court by judgment dated October 9, 2006 dismissed the writ petition. Under these circumstances, I feel that the the learned Munsiff is not justified in allowing amendment application I.A. NO.2721 of 2007. In the result, the writ petition is allowed, the impugned order is set aside and the I.A.No.2721 of 2007 is dismissed. The parties shall bear their own costs. The 1st respondent/plaintiff is entitled to file a WPC.NO.20374/07 Page numbers separate suit, if he chooses for the relief claimed in the above amendment application. P.Q.BARKATH ALI JUDGE sv. WPC.NO.20374/07 Page numbers