IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 WP(C).No. 37679 of 2008(I) --------------------------------------- OS.624/2005 of PRL. MUNSIFF COURT, KOZHIKODE-II .................... PETITIONER(S): ----------------------- VELLARIKKAL KOYAKUTTY, AGED 86 YEARS, SON OF LATE AHAMMED KOYA, VELIPRAM AMSOM AND DESOM OF KOZHIKODE TALUK. BY ADV. SRI.JACOB ABRAHAM, SMT.KOCHUMOL KODUVATH. RESPONDENT(S): ------------------------- 1. THIYYATH PADMANABHAN, S/O.AYYAPPAN, NADUTHODI P.O., VAIDYARANGADI, PULLUKUNNU, RAMANATTUKARA, VELIPRAM AMSOM AND DESOM OF KOZHIKODE TALUK. 2. SANTHA, WIFE OF THIYYATH PADMANABHAN, NADUTHODI P.O. VAIDYARANGADI, PULLUKUNNU, RAMANATTUKARA, VELIPRAM AMSOM AND DESOM OF KOZHIKODE TALUK. R1 & R2 BY ADV. SRI.R.RAMADAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 37679/2008-I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT FILED IN O.S. NO.624/2005 ON THE FILES OF THE MUNSIFF COURT, KOZHIKODE-II (P). EXT.P2: COPY OF THE WRITTEN STATEMENT FILED IN O.S.NO.624/2005 ON THE FILES OF THE MUNSIFF COURT, KOZHIKODE-II. EXT.P3: COPY OF THE I.A. NO.4111/2007 IN O.S.NO.624/2005 ON THE FILES OF THE MUNSIFF COURT, KOZHIKODE-II. EXT.P4: COPY OF THE COUNTER STATEMENT IN I.A.NO.4111/2007 IN O.S.NO.624/2005 ON THE FILES OF THE MUNSIFF COURT, KOZHIKODE-II. EXT.P5: COPY OF THE ORDER DATED 17/06/2008 PASSED IN IA NO.4111/2007 IN O.S.624/2005 BY THE MUNSIFF COURT, KOZHIKODE-II. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. HARUN-UL-RASHID,JJ. ------------------------------- W.P.(C).NO. 37679 OF 2008 ------------------------------- DATED THIS THE 23RD DAY OF SEPTEMBER, 2010 JUDGMENT Petitioner is the plaintiff in O.S.No.624/05 on the file of the Munsiff's Court, Kozhikode-II. The suit was filed for permanent prohibitory injunction restraining the defendants from entering or reducing into their possession of the plaint schedule property. The respondents herein are the defendants in the suit. Ext.P1 is the copy of the plaint. It is the plaintiff's case that he is in exclusive possession and enjoyment of the plaint schedule property and that the defendants have no manner of right in it. 2. In the written statement filed by th defendants it is inter alia contended that they are in possession and enjoyment of the plaint schedule property. They claimed title and possession over the suit property. 3. The plaintiff in the suit filed I.A.No.4111/07, marked as Ext.P3, for amendment of the plaint. Ext.P2 is the written -2- WP(C).No.37679/08 statement filed. Ext.P4 is the copy of the objection filed by the respondents herein opposing the prayer for amendment of the plaint. Ext.P5 is the order passed by he court below dismissing the the said I.A. 4. The suit was originally filed for permanent prohibitory injunction. In the light of the written statement filed claiming title and possession over the plaint schedule property, the prayer sought to be amended is one for mandatory injunction. The court below without discussing the nature of amendment sought for by the plaintiff concluded that the proposed amendment will change the nature and character of the suit and therefore the rights of the parties will be affected. The court below also observed that the plaintiff was aware of the documents relied on by the respondents. That was another reason for dismissing the petition for amendment. 4. I have gone through the reasons stated in Ext.P5 order and I find that that the prayer of the plaintiff is declined without examining the proposed amendment in the right -3- WP(C).No.37679/08 perspective. The court below jumped into the conclusion that if the amendment is allowed, that will change the nature and character of the suit. It is not stated as to how the nature and character of the suit will be changed, if the proposed amendment is allowed. What is the amendment sought for and what will be the impact of the proposed amendment etc. are not considered by the court below. 5. In the circumstances, the issue regarding amendment requires re-consideration. Therefore, Ext.P5 order is set aside. The Principal Munsiff's Court-II, Kozhikode is directed to reconsider the matter afresh and pass orders in accordance with law, within a period of three months from the date of receipt of a copy of this judgment. The respondents are at liberty to raise all the contentions available to them in opposing the application for amendment before the court below. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.