IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 OP(C).No. 3806 of 2011(O) -------------------------------- OS.1194/2007 of PRL.M.C.,TRIVANDRUM .................... PETITIONER:PLAINTIFF ---------------------------- CHANDRASEKHARAN NAIR ,TC 14.123,REVATHY HTG-8, HILL TOP GARDENS PULAYANARKOTTA THIRUVANANTHAPURAM. BY ADVS. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON RESPONDENT(S): DEFENDANT ----------------------------------- SAMBASIVAN , S/O.PONNAPPAN, CHANDRIKA BHAVANAM, HOUSE NO.513, PULYANARKOTTA, THURUVICKAL PO, THIRUVANANTHAPURAM,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,R.RAMACHANDRAN, S/O.RAMU, ABHAYE, HOUSE NO.52,NEERAZHI LANE,ULLOOR MEDICAL COLLEGE, THIRUVANANTHAPURAM 695 011. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 3806/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COY OF THE PLAINT IN OS.1194/2007 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. P2: COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM FILED BY THE RESPONDENT/DEFENDANT IN OS.1194/2007 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. P3: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER / PLAINTIFF TO EXT.P2 COUNTER CLAIM FILED BY RESPONDENT DEFENDANT. P4: COPY OF THE COMMISSION REPORT IN OS.1194/2007. P5: COPY OF THE PLAINT OS.1241/2007 P6: COPY OF THE WRITTEN STATEMENT IN OS.1241/2007 P7: COPY OF THE APPLICATON FOR THE ISSUANCE OF A COMMISSION. P8: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER / PLAINTIFF TO EXT.P7. P9: COPY OF THE APPLICATION FOR AMENDMENT OF THE COUNTER CLAIM IN OS. 1194/2007. P10: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER / PLAINTIFF TO EXT.P9 APPLICATION. P11: COPY OF THE ORDER IN IA.10481/2010 DT.24.9.2011 OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. P12: COPY OF THE ORDER IN IA.10479/2010 DT.24.9.11 OF THE PRINCIPAL MUNSIFFS COURT, THIRUVANANTHAPURAM. P13: COPY OF THE APPLICATION FOR REVIEW FILED BY THE PETITIONER PLAINTIFFS AS IA.77335/2011 AGAINST EXT P11 ORDER. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ----------------------------------- O.P.(C)No.3806 of 2011 --------------------------------- Dated this the 23rd day of November, 2011 JUDGMENT Plaintiff in O.S.No.1194 of 2007 of the court of learned Principal Munsiff, Thiruvananthapuram is aggrieved by Exts.P11 and P12, orders. 2. Petitioner/plaintiff filed the suit for a decree for permanent prohibitory injunction restraining the respondents from trespassing into plaint B schedule property. Plaintiff claimed title and possession over plaint A and B schedules. Respondent filed Ext.P2, written statement and counter claim initially making a claim over plaint B schedule alleging that there is a way on the northern side of the said B schedule. In the meantime, respondent filed O.S.No.1241 of 2007 raising similar contentions regarding the property he claimed title and possession and the pathway. While so, respondent filed Ext.P7, application for appointment of a survey commission and Ext.P9, application for amendment of the counter claim to plead that the pathway is along the eastern side of counter claim schedule property and to O.P.(C)No.3806 of 2011 2 correct the expression 'B schedule' in the counter claim as “counter claim schedule property”. There was also a request to incorporate the schedule of property in the counter claim over which respondent claimed title and possession which was omitted to be mentioned in the counter claim. Request as per Ext.P7, application was to appoint a Survey Commission to identify the counter claim property sought to be incorporated in the counter claim by Ext.P9, application. Those applications were resisted by petitioner but, allowed by the learned Munsiff as per Exts.P11 and P12, orders. 3. It is contended by the learned counsel that amendment if allowed would to take away the admission made by respondent in the original written statement and counter claim as to the alleged existence of way on the northern side. It is also contended that it is suppressing pendency of O.S.No.1194 of 2007 that respondent filed O.S.No.1241 of 2007. 4. So far as Ext.P12, order allowing Ext.P9, application for amendment is concerned, as above stated, respondent wanted to correct the statement in the counter claim “B schedule property” O.P.(C)No.3806 of 2011 3 as “counter claim schedule property” and incorporate the schedule of that property in the counter claim. He also wanted to state that the way he claims is on the east of the said property and not on the north as originally stated. 5. I am unable to understand the statement originally made by the respondent in the counter claim regarding existence of way on the northern side as an 'admission', for, petitioner does not admit that there is any such way on the northern side. Hence, no question of admission is involved. Hence stating by way of amendment that the way is on the eastern side does not amount to withdrawing any admission. I am also not inclined to think that allowing the amendment would alter the nature and character of the suit. An omission to mention the counter claim property by a separate schedule is corrected by incorporating that schedule in the counter claim. 6. Now, back to Ext.P11 order. Learned counsel submits that petitioner has filed application for review of the said order and hence correctness of Ext.P11, order may not be decided in this proceeding. O.P.(C)No.3806 of 2011 4 7. That submission is recorded and it is made clear that it is open to the petitioner to proceed with request for review of Ext.P11, order notwithstanding this Original Petition. Resultantly, the challenge to Ext.P12 order fails and accordingly, this Original Petition is dismissed. I make it clear that this judgment will not stand in the way of petitioner proceeding with the application for review of Ext.P11, order which is said to be pending before the learned Munsiff. sd/- THOMAS P JOSEPH, JUDGE /True copy/ P.A. to judge ln