IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 WP(C).No. 26998 of 2010(O) ---------------------------------------- I.A.NO.515/2010 IN OS.43/2010 of MUNSIFF MAGISTRATE, ERATTUPETTA .................... PETITIONER(S): ---------------------- IBRAHIM,S/O.ALIYAR, PUTHENPURACKAL HOUSE NENMENY BHAGOM, VELANILAM KARA, MUNDAKKAYAM VILLAGE AND TALUK,KOTTAYAM DISTRICT. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): --------------------------- K.V.CHERIAN, S/O.VARKEY, KINATTUKARA HOUSE, VEANILAM P.O.,VELANILAM KARA,MUNDAKAYAM VILLAGE, KANJIRAPPALLY TALUK-686121. ADV. SRI.SUNIL CYRIAC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.26998/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPIES OF PLAINT IN OS. 43/2010 ON THE FILES OF THE MUNSIFF'S COURT, ERATTUPETTA. P2:- COPY OF THE COMMISSION REPORT DTD. 12.3.2010 AND SKETCH FILED IN OS. NO.43/2010/ P3:- COPY OF THE COUNTER AFFIDAVIT WITH PETITION FILED TO IA. 215/2010 BY THE RESPONDENT. P4:- COPY OF THE I.A. 365/2010. P5:- COPY OF THE I.A. 515/2010. P6:- COPY OF THE OBJECTION TO EXT.P5. P7:- COPY OF THE ORDER DTD. 16.7.2010 IN IA. 515/2010 OF THE MUNSIFF'S COURT, ERATTUPETTA. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.26998 of 2010 --------------------------------------- Dated this 28th day of July, 2011 JUDGMENT This writ petition is in challenge of Ext.P7, order refusing a second amendment to the plaint. Petitioner filed O.S.No.43 of 2010 before the learned Munsiff, Erattupetta for a decree for prohibitory injunction against respondent reducing width of the road on the west and south of the suit property. The plaint as originally filed did not even have a schedule of the disputed road and later, Ext.P4, application for amendment to incorporate the schedule was filed. That application was allowed (I am told that amendment was carried out only within the extended time). As per that amendment width of the disputed road on the southern side is stated as 10.9feet. Based on Ext.P2, report of the Advocate Commissioner, petitioner again wanted plaint to be amended to state width of the road at the first gate and second gate as 18 feet and 21.6 feet, respectively. That application was opposed and dismissed by the learned Munsiff as per Ext.P7, order. 2. Learned counsel for petitioner contends that for a proper adjudication of the dispute involved, amendment is required and that learned Munsiff need not have decided the W.P(C).No.26998 of 2010 -: 2 :- application on merit of the claim. It is also submitted that amendment was intended to make the plaint averments in tune with the report of Advocate Commissioner by which the respondent is not put to any prejudice. 3. I have heard learned counsel for respondent also. Learned counsel submitted that there is no merit or bonafide in the application. It is pointed out that Ext.P2, report was submitted even before Ext.P4, application for amendment was preferred. It is also pointed out that in spite of that, Ext.P5, application does not say why in Ext.P4, application the amendment now sought to be incorporated by Ext.P5, application was not mentioned. 4. It appears that appropriate steps were not taken in the trial court at the appropriate time. It is not as if law permits petitioner to seek amendment at any stage he so wishes. Such practice has to be put an end to. However having regard to the facts and circumstances of the case I am inclined to allow the amendment but, on heavy cost. Resultantly this writ petition is allowed in the following lines: (i) Ext.P7, order will stand set aside and Ext.P5, application allowed on condition that petitioner paid/deposited in the court below for W.P(C).No.26998 of 2010 -: 3 :- payment to the respondent `.5,000/- (Rupees Five Thousand Only) by way of cost within a month from this day. (ii) In case the cost as aforesaid is deposited, Ext.P5, application will stand allowed and petitioner shall carry out the amendment within two weeks from the date on which cost is deposited within the aforesaid time. (iii) It is directed that if the condition above stated is not complied this writ petition will stand dismissed in confirmation of Ext.P7, order. (THOMAS P JOSEPH, JUDGE) Sbna/-