IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 31881 of 2006(U) -------------------------- OS.286/1997 of MUNSIFF COURT, KARUNAGAPPALLY .................... PETITIONER(S): --------------- ABDUL KHADER, KHADEEJA MANZILIL, MIDAPPALLY MURI, PANMANA VILLAGE. BY ADV. SRI.K.SUBASH CHANDRA BOSE SRI.V.RAJASEKHARAN PILLAI RESPONDENT(S): --------------- 1. JALEEL, S/O. SHAMSUDEEN, SANOJ MANZILIL, NETTIYATTARA MURI,PANMANA VILLAGE. 2. JAMEELA D/O. JAMALUDHEEN, PUDIKKAL VEEDU, -DO-. 3. NAZEEMA, D/O. JAMALUDHEEN, -DO-. 4. BUSHRA, D/O. JAMALUDHEEN, -DO-. 5. NAVAS, S/O. JAMALUDEEN, -DO-. 6. SABEENA, D/O. JAMALUDEEN, -DO-. 7. SAMEERA, D/O. JAMALUDEEN, -DO-. 8. ASIYA BEEVI, W/O. JAMALUDEEN -DO-. 9. PAPPACHAN, KIZHAKKEVEETTIL THEKKATIHIL, NADUVILAKKARA MURI, THEVALAKKARA VILLAGE. 10. OMANA, PANOOTHEKKATHIL VEEDU, KALLELIBHAGOM MURI, KARUNAGAPPALLY. 11. ANANDAVALLY, ANANDA BHAVAN, CHANGANKULANGARA MURI, KULASEKHARAPURAM VILLAGE. (...2/-) WP(C).31881/06 (2) 12. RADHAMANI, VIJAYABHAVANAM, VALLIKUNNAM, KADAVINAL, OACHIRA VILLAGE. 13. YASODA, KARIYIL VEEDU, PRAYAR MURI, OUTHUPPALLY VILLAGE, KAYAMKULAM. 14. RAMANI, VENGA VADAKKATHIL, KOZHIKODE MEKKATHIL, KARUNAGAPPALLY. 15. THULASI, THUSHARA VEEDU, PRAYER VADAKKUM MURI, PUTHUPALLY VILLAGE, KAYAMKULAM TALUK. 16. BEENA, -DO-. 17. BINDHU -DO-. 18. BIJU -DO-. 19. ANNAMMA PAPPACHAN, KIZHAKKEVEETTIL THEKKATHIL, NADUVILAKKARA MURI, THEVALAKKARA VILLAGE. 20. RAJU PAPPACHAN, S/O. PAPPACHAN -DO-. 21. NAJIM, PARAMBIL VEEDU, NETIYATTU MURI, PANMANA VILLAGE. 22. KHADEEJAKUTTY, KHADEEJA MANZILIL, MIDAPPALLY MURI, PANMANA VILLAGE. ADV. SRI.P.VISWANATHAN FOR R5,9,21 SRI.AJU MATHEW FOR R5,9,21 SRI.PRASAD CHANDRAN FOR R5,9,21 SRI.V.VARUN FOR R5,9,21 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).31881/06 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:-COPY OF PLAINT IN O.S.286/97 BEFORE M.C.,KARUNAGAPPALLY DT.30.5.97 EXT.P2:- COPY OF WRITTEN STATEMENT FILED BY ORIGINAL DEFENDANT JAMALUDHEEN DT.4.7.97 EXT.P3:- COPY OF JUDGMENT IN A.S.107/02 BEFORE D.C.,KOLLAM DT.30.6.05 EXT.P4:- COPY OF PLAINT IN O.S.105/04 BEFORE M.C., KARUNAGAPPALLY EXT.P5:- COPY OF I.A.1442/05 IN O.S.286/97 BEFORE MC, KARUNAGAPPALLY. EXT.P6:- COPY OF AMENDMENT PETITION I.A.1251/06 IN O.S. -DO EXT.P7:- COPY OF OBJECTION TO AMENDMENT IN I.A.1251/06 IN O.S.-DO EXT.P8:- COPY OF ORDER DT.24.8.06 DISMISSING I.A.1251/06 -DO- EXT.P9:- COPY OF REVIEW PETITION IN I.A.1497/06 -DO- EXT.P10:- COPY OF ORDER DT.5.10.06 DISMISSING REVIEW -DO- EXT.P11:-COPY OF COMMISSION APPLN. IN I.A.1252/06 - DO EXT.P12:-COPY OF TRANSPORTATION PETITION IN I.A.1971/06 -DO- RESPONDENT'S EXHIBITS:- NIL okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No. 31881 OF 2006 ------------------------------ Dated this the 14th day of July, 2009 J U D G M E N T ---------------------- 1. In this writ petition filed under Article 227 of Constitution of India, the plaintiff in O.S.286/97 of the Munsiff Court, Karunagappally is challenging Exts.P8 and P10 orders of that Court. The original suit was filed for fixation of boundary, setting aside the re-survey plan, and consequential mandatory injunction. During pendency of the suit the petitioner filed two I.As, one for impleading additional parties and the other for amendment of the suit. The Court below allowed the impleading application. But I.A.1251/06 filed seeking amendment of the suit was dismissed, as per Ext.P8 order. The petitioner filed Ext.P9 application seeking review of Ext.P8 order, but it was also dismissed through Ext.P10 order. 2. In Ext.P8 the court below found that if the amendment is allowed it will alter the very nature of the suit. It is observed that the alleged cause of action which necessitated the proposed amendment was available right from the year 1997 onwards and the amendment petition is filed only in the year 2006. It is further observed that, if the amendment is allowed that will amount to altering the schedule property in the suit. At the W.P.(C).31881/06 2 same time there is no petition filed to amend the relief portion of the suit, and a further amendment will become necessary on the basis of the changes sought to be effected with respect to the suit property and for consequential reliefs, is the findings. The court below found that the suit is of the year 1997 and the amendment is sought for only in the year 2006. Therefore it is found that the amendment, if allowed, will definitely cause delay in disposal of the suit. 3. Ext.P1 is copy of the plaint. Ext.P6 is the interim petition filed seeking amendment. On a perusal of the plaint and the amendment application, it is evident that the amendment if allowed will result in altering the very nature of the suit. As per the amendment sought for, the schedule property in the suit has to be changed by adding new properties. So also, the cause of action set forth in the amendment is evidently distinct from that contained in the original suit. As observed by the learned Munsiff there is lack of prayer for amending the relief portion. Parties of the suit and cause of action against each of the parties will undergo total change as per the contents of the amendment application. The amendment application was objected by the defendants through Ext.P7, which set forth valid reasons for declining the amendment. 4. It is pointed out by the learned counsel appearing for W.P.(C).31881/06 3 petitioner that the suit was initially dismissed for non payment of balance court fee, in the year 1999. It was restored only through Judgment of the appellate court, in the year 2004. Therefore, in fact no delay was caused from the side of the plaintiff in disposal of the suit, is the contention. Learned counsel appearing for respondents 5, 9 and 21 vehemently contended that the amendment sought for in Ext.P6, if allowed, will amount to altering the very nature of the suit and permitting new cause of action based on properties different from that of the plaint schedule, against different parties impleaded. 5. On a perusal of the impugned order and the records of the suit, I find that the reasoning in Ext.P8 order is perfectly valid and justifiable. The review application filed against Ext.P8 does not contain any new ground or facts which was omitted notice of the court, nor any apparent error with respect to Ext.P8 order was pointed out. Therefore the learned Munsiff is perfectly justified in dismissing the review petition. Under the above circumstances I feel that no interference is called for on Exts.P8 and P10 orders. Hence this writ petition is liable to be dismissed. 6. It is pointed out by the counsel appearing for both sides that the suit is still pending disposal, and the trial has not yet commenced. It is further submitted that a joint trial of the W.P.(C).31881/06 4 suit along with O.S.No:105/04 was already allowed by the court below had posted Ext.P1 suit for disposal along with O.S.No:105/04, as per order in I.A.1538/06 dt:27.9.06. The court below had already allowed impleading of additional parties in the suit. Therefore the counsel for the petitioner pointed out that it is highly necessary to mould relief against parties additionally impleaded, without altering the nature of the suit, in order to have an effective adjudication of the issues involved, especially for a joint trial of the suit with O.S.105/04 and for a proper disposal of both cases. Therefore he seeks permission for filing fresh amendment petition as permissible under law. I find it only just and proper to clarify that the dismissal of the amendment application and the review petition through Ext.P8 and P10 and its confirmation through this writ petition will not in any way prejudice rights if any available to the petitioner further to seek amendment of the suit to the extent permissible under law. The writ petition is dismissed accordingly. C.K.ABDUL REHIM, JUDGE. okb