IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 OP(C).No. 1151 of 2011(O) ------------------------------------- [OS.NO.219/2009 OF MUNSIFF- MAGISTRATE COURT, ERATTUPETTA] .................... PETITIONER/PLAINTIFF: ----------------------------------- JIMMY, S/O. SCARIAH, MATTATHIL HOUSE, MELUKAVU VILLAGE, MELUKAVU KARA. BY ADVS. SRI.SHAJI THOMAS PORKKATTIL, SRI.N.NAGARESH, SRI.BINU PAUL, SRI.T.V.VINU, SRI.SHINE MATHEWS(VADAKKEKARA). RESPONDENT/RESPONDENTS: --------------------------------------------- 1. JOMY, S/O. SEBASTIAN, VALIYAMANGALATHU HOUSE, THALAPPALAM VILLAGE, THALAPPALAM KARA, KALATHUKADAVU P.O., PIN-686 579. 2. GEORGE, S/O. THOMMAN, VALIYAMANGALATHU HOUSE, THALAPPALAM VILLAGE, THALAPPALAM KARA, KALATHUKADAVU P.O., PIN-686 579. 3. THOMAS, S/O. THOMMAN, VALIYAMANGALATHU HOUSE, THALAPPALAM VILLAGE, THALAPPALAM KARA, KALATHUKADAVU P.O., PIN-686 579. R1 BY ADV. SRI.P.C.HARIDAS. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.1151/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 219/2009 DTD. 20/11/2009 OF THE MUNSIFF'S MAGISTRATE COURT, ERATTUPETTA. EXT.P.2: COPY OF THE WRITTEN STATEMENT IN O.S. NO. 219/2009 DTD. 25/02/2010 FILED BY THE 1ST DEFENDANT. EXT.P.3: COPY OF THE WRITTEN STATEMENT IN O.S. NO. 219/2009 DTD. 22/03/2010 FILED BY THE 2ND DEFENDANT. EXT.P.4: COPY OF THE I.A. NO. 148/2011 IN O.S. NO. 219/2009 DTD. 05/02/2011 FILED BY THE PETITIONER. EXT.P.5: COPY OF THE ORDER DTD. 26/02/2011 IN I.A. NO. 148/2011 IN O.S. NO. 219/2009 OF THE MUNSIFF'S COURT, ERATTUPETTA. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1151 of 2011 --------------------------------------- Dated this 28th day of September, 2011 JUDGMENT Ext.P5, order dated 26.02.2011 on I.A.No.148 of 2011 in O.S.No.219 of 2009 of the Court of learned Munsiff, Erattupetta is under challenge. Petitioner sued the respondents for a decree for prohibitory injunction concerning plaint B schedule way claiming right of easement by way of necessity over it on the contention that plaint A schedule belonging to the petitioner and the property of respondents through which right of way is claimed originally belonged to the grand father of petitioner. The claim was resisted by the respondents. The parties went into trial on the issues framed. Petitioner was examined as PW1. At that stage he came with I.A.No.148 of 2011 for amendment of the plaint to state that the properties originally belonged to Kochupurackal Krishnan Nair. That application was opposed by the respondents. Learned Munsiff dismissed the application by Ext.P5, order observing that even the evidence of petitioner as PW1 shows that even before the institution of the suit he was aware that properties originally belonged to Kochupurackal Krishnan Nair and hence request for amendment cannot be O.P(C).No.1151 of 2011 -: 2 :- allowed. 2. Learned counsel for petitioner contended that having regard to the circumstances of the case, the court below ought to have allowed amendment and that even if the amendment is allowed that will not cause any prejudice to the respondents or would not change the nature and character of the suit. 3. Learned counsel for respondents has contended that since the evidence of petitioner as PW1 shows that he was aware of the fact sought to be incorporated by amendment even before the institution of the suit, request for amendment cannot be allowed as trial has commenced. 4. True that under the proviso to Rule 17 of Order VI of the Code of Civil Procedure, after the commencement of trial the request for amendment cannot be allowed unless, in spite of exercise of due diligence the party could not seek amendment. This Court has placed reliance on the decision in Eapen Antony Vs. Joseph and Anr. (2009(1) ILR (Kerala) 712) has referred to the various circumstance in which in spite of due diligence, a party might omit to make necessary plea in the pleadings and might ask for amendment after commencement of the trial. It is stated in certain cases it may be when the party is in the box that O.P(C).No.1151 of 2011 -: 3 :- the inadequacy or mistake in the pleading is brought into his notice. 5. In the case on hand the only amendment that is sought for is that instead of the statement in the plaint that the properties originally belonged to the grand father, it is to be stated as belonged to Kuchupurackal Krishanan Nair. I am not inclined to think that by allowing the said amendment it would in any way prejudice the respondents or affect the nature and character of the suit. Viewed in that line, I am inclined to accept the request but on terms of cost. Resultantly this original petition is allowed. Ext.P5, order is set aside and Ext.P4, application (I.A.No.148 of 2011) in O.S.No.219 of 2009 of the court of learned Munsiff, Erattupetta will stand allowed on condition that petitioner paid to the respondent `.3,000/- (Rupees Three Thousand Only) by way of cost within three weeks from this day. The cost shall be paid through the counsel for respondents in the court below or deposited in that Court for such payment. On compliance with that condition Ext.P5, application will stand allowed and petitioner shall carry out the amendment within two weeks from the date of payment/deposit of the amount. In case the condition O.P(C).No.1151 of 2011 -: 4 :- for payment/deposit is not complied within the time prescribed, this original petition will stand dismissed in confirmation of Ext.P5, order. On the amendment being carried out, respondents shall be given opportunity to file additional written statement in answer to the amended plaint. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-