IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 16576 of 2009(O) -------------------------- AGAINST THE ORDER DATED 29/05/2009 IN IA.213/2009 IN OS.332/2006 of MUNSIFF'S COURT, PUNALUR .................... PETITIONER(S): RESPONDENT NO.1/DEFENDANT NO.1: ---------------------------------------------------------------------------------- PADMAVATHY, W/O.LATE KUTTAPPAN, JAYA BHAVAN, YEROOR VILLAGE, YEROOR POST, PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADVS. MR.SAJAN VARGHEESE K. MR.LIJU. M.P. RESPONDENT(S): PETITIONER & RESPONDENT NO.2/PLAINTIFF & DEFENDANT NO.2: --------------------------------------------------------------------------------- 1. K.P.JAYASREE, JAYA BHAVAN, YEROOR, YEROOR P.O., PATHANAPURAM TALUK, NOW RESIDING AT SOUPARNIKA, HOUSE NO.7, CHEMPAKA NAGAR, BAKERY JUNCTION P.O., THIRUVANANTHAPURAM. 2. ANIL KUMAR, S/O.BHASKARAN, MANGALASSERIL PUTHEN VEETTIL, AGASTHYACODU, KURUVIKONAM, ANCHAL P.O., KOLLAM DISTRICT. R1 BY ADVS. MR.P.B.SURESH KUMAR, MR.LEO GEORGE, MR.K.P.SUJESH KUMAR, MR.K.N.SASIDHARAN NAIR, SMT.SANDHYA RADHAKRISHNAN, SMT.M.SRUTHY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16576/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.332/2006 ON THE FILE OF MUNSIFF'S COURT, PUNALUR. P2: COPY OF I.A.NO.2223/2006 IN O.S.NO.332/2006 ON THE FILE OF MUNSIFF'S COURT, PUNALUR. P3: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER (DEFENDANT NO.1) IN O.S.NO.332/2006 ON THE FILE OF MUNSIFF'S COURT, PUNALUR. P4: COPY OF THE COMMISSION REPORT DTD. 14/10/2008 FILED IN O.S.NO.332/2006 ON THE FILE OF MUNSIFF'S COURT, PUNALUR. P5: COPY OF I.A.NO.213/2009 IN O.S.NO.332/2006 ON THE FILE OF MUNSIFF'S COURT, PUNALUR. P6: COPY OF THE OBJECTION DTD. 20/03/2009 FILED BY THE PETITIONER TO EXHIBIT P5 APPLICATION. P7: COPY OF THE ORDER DTD. 29/05/2009 PASSED IN I.A.NO.213/2009 IN O.S.NO.332/2006 ON THE FILE OF MUNSIFF'S COURT, PUNALUR. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 16576 OF 2009 O ```````````````````````````````````````````````````` Dated this the 7th day of July, 2009 J U D G M E N T The 1st defendant in O.S.No.332/06 on the file of the Munsiff Court, Punalur has filed this writ petition seeking the following reliefs: “ (i) call for records relating to Exts.P1 to P7; (ii) set aside Ext.P7 and dismiss Ext.P5.” 2. The 1st respondent is the plaintiff and second respondent, 2nd defendant in the suit. Plaintiff is the daughter of the petitioner. Suit was laid seeking a decree of fixation of boundary and perpetual prohibitory injunction against the defendants. Suit property having an extent of 2.59 acres formed part of a property which originally belonged to the father of the plaintiff and husband of the petitioner. After the death of the father, a partition deed was entered into by which the plaint property was allotted in favour of the daughter and the rest 2 acres on its southern side to the mother. Admittedly, the plaint property WPC.16576/09 : 2 : is a rubber plantation. Without her knowledge, the mother entered into an arrangement with the 2nd defendant for slaughter tapping of the trees, is the case of the plaintiff as the immediate cause for laying the suit seeking the relief as aforementioned. Suit claim was resisted by the 1st defendant by filing a written statement. An Advocate Commissioner appointed by the court conducted a local inspection to collect materials which are found necessary for adjudication of the disputes arising for consideration in the suit. Pursuant thereto, the plaintiff moved an application for amendment of the plaint so as to seek an additional relief for right of easement by prescription over a way through the property of the mother and also for describing that pathway as B schedule in the plaint. The amendment sought for was objected to by the 1st defendant. The learned Munsiff, after hearing both sides, allowed the amendment application. Ext.P4 is the copy of the order. Propriety and correctness of Ext.P7 order is impeached in the writ petition by the petitioner/1st defendant invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The amendment application was filed at a time when the suit was ripe for trial and WPC.16576/09 : 3 : there is no whisper or allegation in the plaint as to the existence of a pathway or its enjoyment by the plaintiff for ingress to and egress from her property described as A schedule and even the partition deed is silent as to the existence of a pathway, according to the learned counsel for the petitioner. In the above circumstances, it is contended, the claim of a right of easement by prescription over a pathway which never existed and relief sought thereof by way of amendment should not have been entertained by the court. On the other hand, the learned counsel for the plaintiff/1st respondent inviting my attention to the Commissioner’s report, submitted that the existence of a pathway through the property of the petitioner/1st defendant is borne out by that report and, in the nature of the disputes arising between the parties, rather than driving the plaintiff to file a separate suit to seek the additional relief claimed the interests of justice demand extending her an opportunity to agitate that right also by way of amendment with the relief already claimed in the suit. That alone was permitted by the court below and no interference with that order by invoking the visitorial jurisdiction of this court is warranted, is the submission of the counsel. WPC.16576/09 : 4 : 4. So far as amendment of pleadings is concerned, the question arising for determination is whether the amendment sought for is necessary for resolving the controversy arising for adjudication to the suit or proceedings. That is the mandate under Order 6 Rule 17 CPC. True, the proviso added to Rule 17 by the amendment brought into force with effect from 2002 places some embargo and interdiction that unless the party who is seeking the amendment show that it was necessitated in spite of due diligence it cannot be permitted after the commencement of the trial. So much so, what is of significance is whether the proposed amendment sought for by the plaintiff to resolve the controversy between the parties in respect of the subject matter involved is necessary or not. There cannot be any doubt that she could agitate the relief claimed sought for under the amendment by a separate suit. Whether the pathway is in existence or such a pathway was enjoyed by her as of right by way of easement by prescription or not are all questions to be adjudicated in the suit. In the nature of the controversy arising for adjudication between the parties and the location of plaint property as situated to the southern side of the property of the 1st defendant, with the road WPC.16576/09 : 5 : situated on the northern side, coupled with the observation made by the Commissioner during his local inspection, as spelt out in his report, that semblance of an old pathway was visible in the property of the first defendant, it appears the court below was justified in allowing the amendment permitting the plaintiff to agitate that relief also in the very same suit. No prejudice would be caused to the 1st defendant by the amendment proposed as she would be given sufficient opportunity to meet the case presented by the plaintiff in seeking the additional relief. So much so, I find the challenge raised against Ext.P7 order must fail. But, I make it clear that none of the observations made by this court in the judgment shall have any bearing or reflection in arriving at the final decision in the suit which has to be formed by the learned Munsiff after adjudication of the disputes involved after giving both sides sufficient opportunity to give evidence in support of their respective case. Writ petition is disposed. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks