IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 CRP.No. 2127 of 2002() ---------------------- AGAINST THE ORDER DATED 17/09/2002 IN IA. 1050 /2002 IN OS.134/2000 of MUNSIFF COURT, ETTUMANOOR REVN. PETITIONER(S): (PLAINTIFFS): 1. SREEKUMAR, S/O. SUMATHY RAMAKRISHNAN, KUNNATHUPARAMBIL HOUSE, MUDIYOOR KARA, PERUMPAIKADU VILLAGE. 2. K.K.KUMARAN, S/O. LATE KONTHY, KUZHIPARAMBIL HOUSE, MUDIYOORKARA, PERUMBAIKADU VILLAGE. 3. REKHA, D/O. SUMATHY RAMAKRISHNAN, KUNNATHUPARAMBIL HOUSE, MUDIYOORKARA, PERUMBAIKADU VILLAGE. BY ADVS. SRI.K.PRABHAKARAN SRI.JOSE THETTAYIL RESPONDENT(S): (DEFENDANTS): 1. K.N.KUMARAN VAIDYAR, S/O.NARAYANAN, KUNNATHUPARAMBIL, MUDIYOORKARA KARA, PERUMBAIKADU VILLAGE. (DIED) 2. AMMUKUTTY NARAYANAN, KUNNATHUPARAMBIL, MUDIYOORKARA KARA, PERUMBAIKADU VILLAGE. 3. NALINI RAVINDRAN, W/O. LATE RAVINDRAN, KUNNATHUPARAMBIL HOUSE, MUDIYOORKARA KARA, PERUMBAIKKADU VILLAGE. ADDL.R4.K.K. SAROJINI, W/O. K.N.KUMARAN VAIDYAR, KUNNATHUPARAMBIL, MUDIYOORKARA KARA, PERUMBAIKADU VILLAGE, GANDHINAGAARA P.O., KOTTAYAM. (ADDITIONAL 4TH RESPONDENT WHO IS THE L.R. OF THE 1ST RESPOPNDENT IS IMPLEADED VIDE ORDER DATED22..6.2007 IN I.A. NO. 1432 OF 2004.) ADVS. SRI.PHILIP T.VARGHESE SRI.ANIL NAMBOODIRI THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN C.M.P. NO. 5286 OF 2002 IN C.R.P. NO. 2127 OF 2002. DISMISSED 19.12.2008 Sd/- (HARUN-UL-RASHID, JUDGE) HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 2127 OF 2002 -------------------------------------------- Dated this the 19th day of December, 2008 O R D E R The plaintiffs in O.S. No. 134 of 2000 on the file of the Munsiff's Court, Ettumanoor are the revision petitioners. The revision is directed against the order dated 17.9.2002 in I.A. No.1050 of 2002. 2. The suit is filed for prohibitory and mandatory injunction. According to the plaintiffs, as per the survey report and plan submitted by the Commissioner it is evident that the first defendant had not given the entire ten feet wide land from his property for the formation of B schedule road and, therefore, the plaintiffs are entitled to get the remaining portion from the first defendant's property for B schedule road. The plaintiffs, therefore sought amendment of the plaint to add certain facts in paragraphs 4 and 14 and to add a separate paragraph as 11-A. Consequential amendments were also sought to be inserted in prayers B and C. The court below observed that the application is not bona fide since the plaintiffs had waited till the case was listed for trial. The court below also observed that nearly seven years have elapsed since the plaintiffs have claimed right over B schedule road portion and hence the claim is barred by limitation. C.R.P. NO. 2127/2002 2 3. After hearing counsel on both sides, I find that the reason stated by the court below for dismissing the application is not sustainable. In some cases, a petition for amendment may come up during trial and even during the appellate stage. Therefore, I am of the view that the amendment sought to be inserted in the plaint should have been allowed. 4. Learned counsel appearing for the respondents submitted that the amendment sought to be incorporated is in respect of a claim which is barred by limitation. The question whether the plaintiffs are entitled to the reliefs sought for by the proposed amendment is a question to be decided on merits which would include the question of limitation as well. The defendants/respondents are entitled to raise whatever contentions available to them by filing an additional written statement and they can agitate the question at the time of trial. Another contention raised by counsel for the respondents is that the amendment cannot relate back to the date of filing of the plaint, but may be restricted to the date of filing of the petition for amendment. Learned counsel cited the decision of this Court reported in Subramanian v. Aboobacker Koya, 2003(3) K.L.T. 819 wherein this Court held as follows: C.R.P. NO. 2127/2002 3 "It cannot be said that in all cases amendment will relate back to the date of filing of the suit. It is open to the court ordering amendment to specify that it will not relate back to the date of plaint so as to affect the defence of limitation available to the defendant. So far as the relief of declaration and recovery of possession are concerned the suit will be deemed to be filed only on the date of the application for amendment of plaint was made." In view of the said decision, I hold that the proposed amendment will not relate back to the date of plaint so as to adversely affect the defence of limitation available to the defendants. The order under revision is, therefore, set aside. I.A. No.1050 of 2002 is allowed on condition of payment of Rs.3,000/- to the contesting respondents within one month from today. The respondents/defendants shall file additional written statement within a period of six weeks from today. Since the suit is of the year 2000, there will be direction to the court below to dispose of the suit within nine months from the date of receipt of a copy of this Order. The Civil Revision Petition is disposed of as above. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO. 2127/2002 4 HAURN-UL-RASHID, J. C.R.P. NO. 2127/2002 O R D E R 19th December, 2008