IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 WP(C).No. 36701 of 2009(O) --------------------------------------- IA.6092/2009 IN OS.1673/2005 of III ADDL. MUNSIFF COURT & (RENT CONTROL), ERNAKULAM. .................... PETITIONER(S): ---------------------- 1. FRANCIS JOSEPH, S/O.LATE P.V. JOSEPH, AGED 33, RESIDING AT PULIKKAL HOUSE, DOOR NO.49/513, ELAMAKKARA.P.O, KOCHI-26. 2. ELSY JOSEPH, W/O.LATE P.V. JOSEPH, AGED 66, RESIDING AT PULIKKAL HOUSE, DOOR NO.49/513, ELAMAKKARA.P.O, KOCHI-26. BY ADV. MR.K.C.CHARLES, MR.M.POLY MATHAI, MR.P.CHELLAPPAN, MR.VIMAL K.CHARLES, SMT.A.T.RENJU. RESPONDENT(S): ------------------------- SRIMAD RAGHAVENDRA THEERTHA SWAMIJI, FATHER'S NAME NOT KNOWN TO THE PLAINTIFFS, AGED 36, RESIDING AT SREE SWARAKA KALAMANDIR, PUTHUKKALAVATTOM, ELAMAKKARA.P.O, KOCHI-26. BY ADV. MR.BOBBYMATHEW KOOTHATTUKULAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 36701/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMISSION REPORT. EXT.P2: COPY OF THE I.A.6092/2009 FOR AMENDING THE PLAINT. EXT.P3: COPY OF THE ORDER PASSED BY THE LEARNED MUNSIFF DATED 13/11/2009 IN I.A.6092/2009. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE PLAINT IN O.S. NO.1673/2005 ON THE FILES OF THE MUNSIFF'S COURT, ERNAKULAM. EXT.R1(B): COPY OF THE OBJECTION FILED BY THE DEFENDANT TO THE COMMISSION REPORT (EXT.P1). EXT.R1(C): COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN I.A.NO.6092/2009 IN O.S. NO.1673/2005 OF THE MUNSIFF'S COURT, ERNAKULAM. //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.36701 OF 2009 -------------------------------- Dated this the 21st day of January 2010 ---------------------------------------------------------- JUDGMENT Petitioners are the plaintiffs in O.S No.1673 of 2005 on the file of Munsiff Court, Ernakulam. Suit was instituted seeking a decree for fixation of boundary, and the respondent is the defendant. Suit claim was resisted by the defendant filing a written statement. An advocate commissioner deputed by the court after conducting local inspection and measuring out the property with the assistance of a surveyor filed a report and plan. Identification of the plaint property on the measurement carried out by the advocate commissioner disclosed that a portion thereof is under the possession of the defendant. Plaintiffs thereupon moved an application for amending the plaint seeking an additional relief for recovery of the portion which was shown in the report and plan as in the possession of the defendant. That amendment application was objected to by the respondent/defendant, and after hearing both W.P.(C).No.36701 OF 2009 Page numbers sides, the learned Munsiff declined the amendment application vide Ext.P3 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The learned Munsiff has gone into the merits of the claim canvassed by the plaintiffs with reference to the title deed anddescription of the property specified thereunder, its survey number etc. is the submission of the learned counsel to assail Ext.P3 order contending that amendment of a pleading canvassed by a party should not be judged by adjudicating merit of the suit claim. On the other hand, the learned counsel for the respondent submits that the plaintiffs even in the amendment application have not canvassed a case that any portion of the plaint property had been trespassed upon by the defendant and, further, in the plaint allegations they have also not sought for any amendment on the basis of which document the amended schedule is to be incorporated. Perusing Ext.P3 order passed by the learned W.P.(C).No.36701 OF 2009 Page numbers Munsiff taking note of the submissions made by the counsel on both sides, it is noticed that the merit of the application moved for amendment was considered with reference to the description of the property in the title deed relied by the plaintiffs for substantiating the suit claim. In the title deed, reference is made to one survey number alone, but, on identification by measurement of the suit property, the advocate commissioner has reported that the property falls in another survey number also. There is much force in the submission made by the learned counsel for the petitioners/plaintiffs that an adjudication of the claim of the plaintiffs raised in the suit cannot be gone into when an amendment of the pleadings is canvassed moving an application to incorporate an additional survey number also in the schedule of the property to give more clarity to the description of the property so far as the recovery of the possession claimed by the plaintiffs by seeking an amendment. I do not find any merit in the submission made by the learned counsel for the respondent that canvassing of such a relief and allowing it will change the character of the W.P.(C).No.36701 OF 2009 Page numbers suit. Amendment of pleadings as envisaged under Order 6 Rule 17 of the Code of Civil Procedure is intended to avoid multiplicity of proceedings and to give a quietus to the whole controversy in the same lis itself to the extent possible and as permitted by law. In the given facts of the case, I find, the approach made by the court below in considering Ext.P2 application moved by the plaintiffs with reference to the merit of the case of the plaintiffs was not proper. Setting aside Ext.P3 order, I direct the court below to consider the matter afresh and dispose Ext.P2 application taking note of the observations made, and in accordance with law. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv