IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 WP(C).No. 23799 of 2008(G) -------------------------- AGAINST THE ORDER DATED 20/06/2008 IN I.A.3333/08 IN OS.633/2007 of PRL.M.C.,ERNAKULAM .................... PETITIONER: ------------ BALASUBRAMANIAN, S/O.RAMANATHA IYER, RETIRED ENGINEER, POONKUNNAM, THRISSUR. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENTS: PLAINTIFFS ------------- 1. AJITH PRASAD THAMPY, S/O.THAMPY, IIIA 6/32, NGO QUARTERS, THRIKKAKARA, ERNAKULAM. 2. GEETHA, W/O.AJITH PRASAD THAMPY, -DO- -DO- -DO- BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.23799 of 2008 ------------------------------- Dated this the 7th August, 2008. J U D G M E N T This petition is filed under Article 227 of the Constitution of India challenging Ext.P7 order passed by Munsiff, Ernakulam, in I.A.No. 3333 of 2008 in O.S.No.633 of 2007. I.A.No.3333 of 2008 is an application filed under Rule 17 of Order VI of Code of Civil Procedure. Learned Munsiff allowed the application for amendment on payment of cost of Rs.1000/= holding that it is only after recording the evidence, plaintiffs came to know that Advocate Commissioner has not correctly identified the way, and, therefore, amendment petition is to be allowed. 2. Learned counsel appearing for the petitioner argued that learned Munsiff did not consider the effect of proviso to Rule 17 of Order VI of Code of Civil Procedure. The learned counsel argued that exercise of due diligence has to be established by the plaintiffs to the satisfaction of the court and omission to file an application before the commencement of the trial was not considered and when even according to the plaintiffs, Commissioner could not identify plaint B W.P.(C) No.23779 of 2008 2 schedule properties, it cannot be said that with due diligence, they could not find out the omission, and, therefore, they are not entitled to file application after the commencement of the trial. 3. On hearing the learned counsel, I do not find any reason to interfere with Ext.P7 order. The suit is only for a permanent prohibitory injunction restraining defendants from making any construction or trespassing into plaint B schedule property, and for a mandatory injunction directing defendants to remove the basement constructed in the plaint B schedule property. Without establishing the identity of plaint B schedule property, plaintiffs cannot claim a decree in respect of plaint B schedule property. If plaint B schedule property is not identified, I do not find any reason, why petitioner is aggrieved by Ext.P7 order. The learned counsel pointed out that documents marked and Ext.P4 sketch establish non existence of plaint B schedule way. Petitioner is at liberty to point these facts before the court below, while hearing the suit. Petitioner is also entitled to challenge Ext.P7 order, if necessary, along with the final judgment. Writ petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.