IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 OP(C).No. 3540 of 2011(O) ---------------------------------- OS.205/2008 of MUNSIFF COURT, TIRUR ......................................................................... PETITIONER: ------------------- ABDURAHIMAN, S/O. OOROTHIYIL ENUDHEENKUTTY HAJI, OMACHAPUZHA (P.O), OMACHAPUZHA AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT(S): ------------------------- 1. OOROTHIYIL UNNI @ MARAKKAR, S/O. KUNHEEN, OMACHAPUZHA AMSOM DESOM OMACHAPUZHA.P.O, PIN - 673 320, TIRUR TALUK, MALAPPURAM DISTRICT. 2. OOROTHIYIL AYISHAMOL, W/O. CHANAPARAMBIL ABDUSSALAM HAJI, C.P. HOUSE, KODINHI.P.O, PIN - 676 309 KODINHI AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. R1 BY ADVS. SRI.BLAZE K.JOSE SMT.B.BINDU SMT.N.DEEPA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKM OP(C).No. 3540 of 2011(O) ----------------------------------- APPENDIX PETITIONER'S EXHIBITS : P1 : COPY OF THE PLAINT IN O.S NO. 205/2008 BEFORE THE MUNSIFF COURT, TIRUR DATED 09/07/2008. P2 : COPY OF THE WRITTEN STATEMENT FILED BY THE IST RESPONDENT/DEFENDANT DATED 06/04/2010. P3 : COPY OF THE APPLICATION FILED BY THE PETITIONER HEREIN AS I.A. 2217/2011 IN O.S 205/2008 BEFORE THE MUNSIFF COURT TIRUR DATED 18/10/2011. P4 : COPY OF THE COUNTER TO I.A 2217/2011 IN O.S 205/2008 BEFORE THE MUNSIFF COURT, TIRUR DATED 20/10/2011. P5 : COPY OF THE ORDER IN I.A 2217/2011 IN O.S 205/2008 BEFORE THE MUNSIFF COURT, TIRUR DATED 21/10/2011. RESPONDENT'S EXHIBITS : NIL /TRUE COPY/ PA TO JUDGE RKM THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3540 of 2011 -------------------------------------- Dated this the 17th day of November, 2011. JUDGMENT This Original Petition is filed by the additional 2nd plaintiff in O.S.No.205 of 2008 of the court of learned Munsiff, Tirur. That is a suit filed originally by the 2nd respondent/1st plaintiff to set out a way to the plaint A schedule belonging to her through the plaint B schedule belonging to the petitioner. The 2nd respondent claimed easement by way of necessity alleging that plaint A and B schedules originally formed common tenement and that she has no other means of access to plaint A schedule. The 1st respondent/defendant filed written statement denying the various allegations and claiming that 2nd respondent has an alternative access to the plaint A schedule. While so, the 2nd respondent filed I.A.No.2543 of 2009 for amendment of boundaries of plaint B schedule. That application was allowed. That was followed by I.A.No.1682 of 2010 to amend the description of plaint B schedule in the body of plaint. That application was also allowed with a direction to carry out the amendment within three days. Since that was not done, 2nd respondent filed yet another application under Rule 18 of Order VI of the Code of Civil Procedure (for short, “the Code”) seeking permission to carry out the amendment. That application was allowed. In the meantime, plaint A schedule was purchased by the petitioner who got himself impleaded as additional 2nd plaintiff. The case was posted for trial in the list on 19.01.2011. But the suit was dismissed as counsel reported no instruction. OP(C)No.3540/2011 2 Thereafter the suit was restored and again posted for trial in the list. At that stage, petitioner came with I.A.No.2217 of 2011 for a further amendment of plaint B schedule. That application was dismissed by the learned Munsiff by Ext.P5, order which is under challenge. 2. It is contended by the learned counsel for petitioner that when the suit was instituted, 2nd respondent had no specific idea about the description of plaint B schedule and it is only later that the document relating to plaint B schedule was obtained, based on which the amendment was sought for. Learned counsel submitted that there is no necessity for any remission of the report and plan submitted by the Advocate Commissioner and what is required is only an amendment of plaint B schedule. 3. Learned counsel for 1st respondent has referred me to the details first above stated to contend that attempt of petitioner is only to harass the 1st respondent. 4. Having regard to the various contentions raised by the parties I am inclined to think that petitioner has to be given an opportunity to amend the plaint B schedule though, such exercises have already been done at the instance of 2nd respondent on prior occasions. Having regard to the circumstances above stated, I am inclined to think that it must be on terms of cost. OP(C)No.3540/2011 3 5. When this Court granted stay of trial of the suit as per order dated 31.10.2011 it was directed as a condition that petitioner shall deposit `5,000/- as cost in the court below. Learned counsel submits that cost was not deposited since learned Munsiff suo motu adjourned trial of case. 6. In the view I have taken above, I am inclined to allow the request of petitioner for amendment of plaint on terms of cost of `5,000/-. Resultantly this Original Petition is disposed of as follows: i. Original Petition will stand allowed, Ext.P5, order set aside and I.A.No.2217 of 2011 in O.S.No.205 of 2008 of the court of learned Munsiff, Tirur allowed on condition that petitioner pays/deposits in this Court for payment to the 1st respondent `5,000/- (Rupees five thousand only) by way of cost within three weeks from this day. ii. On cost being paid/deposited, I.A.No.2217 of 2011 will stand allowed as aforesaid. Thereon petitioner shall carry out the amendment in the plaint within two weeks from the date on which a copy of this judgment is received in the trial court. OP(C)No.3540/2011 4 iii. In case of non-compliance of condition above stated, this Original Petition will stand dismissed in confirmation of Ext.P5, order. THOMAS P.JOSEPH, Judge. cks