IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 WP(C).No. 32345 of 2008(A) -------------------------------------- OS.89/2007 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONER(S): ---------------------- THANKAPPAN PILLAI, S/O.SANKARA PILLAI, AGED 77 YEARS, DEEPIKA, FROM ALUNKAL VELIYIL, AROOR VILLAGE, AROOR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. DR.V.N.SANKARJEE RESPONDENT(S): ------------------------- 1. BALAKRISHNA PILLAI, S/O.GOPALA PILLAI, POLATTU VEETTIL, AROOR VILLAGE, AROOR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 2. SUDHAKARAN, KOCHUPARAMBIL, AROOR VILLAGE AROOR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 3. SULABHA, W/O.SUDHAKARAN, KOCHUPARAMBIL, AROOR VILLAGE, AROOR MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. R1 TO R3 BY ADV. MR.SHAJI THANKAPPAN . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 32345/2008-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S. NO.89 OF 2007 BEFORE THE MUNSIFF'S COURT, CHERTHALA DATED 09/02/2007. EXT.P2: COPY OF THE WRITTEN STATEMENT IN O.S. NO.89 OF 2007 DATED 13/04/2007. EXT.P3: COPY OF THE AFFIDAVIT AND PETITION IN I.A. NO.1047/2007 IN O.S. NO.89/2007 BEFORE THE MUNSIFF'S COURT, CHERTHALA DATED 14/03/2007. EXT.P4: COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT DATED 28/03/2007. EXT.P5: COPY OF THE ORDER PASSED BY THE MUNSIFF'S COURT, CHERTHALA IN I.A. NO.1047/2007 IN O.S. NO.89/2007 DATED 26/02/2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.C.NO.32345 OF 2008 -------------------------- Dated this the 22nd day of June 2009 ------------------------------------- JUDGMENT The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs. 1) Issue a writ petition of certiorari or any other appropriate writ, direction or order, quashing Ext.P5 after calling for the records relating thereto and allow I.A No.1047/2007 in O.S No. 89/2007 on the file of the Principal Munsiff's Court, Cherthala. 2) Pass such other orders as this Honourable Court deems fit and proper in the facts and circumstances of the case. W.P.C.No.32345/2008 2 2) Petitioner is the plaintiff in O.S No. 89/2007 pending on the file of Munsiff's Court, Cherthala. Respondents are the defendants in that suit. Suit was filed for declaration that plaintiff has prescribed right of easement over 'C' schedule, for injunction and other consequential reliefs. Recovery of the property described as 'D' schedule was also sought from the defendants. Suit was laid raising allegations that the plaintiff has absolute title and possession over 'A' schedule property having an extent of 22 cents. After an inspection over the schedule properties was conducted by the Advocate Commissioner, and a report with a plan filed, the plaintiff moved an application to amend the plaint and also the schedules to make out that 'A' schedule is having an extent of 12 cents and the length of the pathway described is much more than what was stated earlier. Amendment application was resisted by defendants filing written objections. Learned W.P.C.No.32345/2008 3 Munsiff after hearing both sides found merit in the objection raised by the defendants that the proposed amendment will cause them prejudice and they cannot be considered as simple mistakes which have crept in inadvertently while drafting the plaint. Taking that view the amendment application was dismissed. Ext.P5 is the copy of that order. Impeaching Ext.P5 order petitioner/plaintiff has filed this petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3) I heard the counsel of both sides. Having regard to the facts and circumstances and taking note of the submissions presented I find that the proposed amendment sought for by the plaintiff, if allowed, as rightly found by the Learned Munsiff would cause prejudice to the defendants, especially in the nature of the relief claimed for recovery of 'D' schedule property setting forth a case they have unlawfully trespassed upon that property. In W.P.C.No.32345/2008 4 case the plaintiff finds that the suit must fail on account of a formal defect in pleadings it is open to him to move for withdrawal of the suit with liberty and file a suit afresh. If any such application is moved,the learned Munsiff shall dispose such application taking note of the facts and circumstances involved. Where there are no circumstance warranting denial of that relief, normally, such a relief is to be permitted when a suit is liable to fail on account of formal defects. Subject to the above observations granting liberty to the plaintiff to move for withdrawal of the suit, if so advised, seeking permission to file a suit afresh, the writ petition is dismissed. S.S.SATHEESACHANDRAN,J JUDGE VDV