IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 WP(C).No. 21149 of 2009(O) -------------------------------------- OS.117/2007 of MUNSIFF MAGISTRATE COURT, SULTHAN BATHERI .................... PETITIONER/PLAINTIFF ---------------------------------- T.R. AYYAPPAN, S/O.RAMAN, PUTHEN VEEDU, NAIKATTY P.O., NOOLPUZHA AMSOM & DESOM, SULTHAN BATHERY TALUK, WAYANAD DISTRICT. BY ADV. MR.P.T.MOHANKUMAR MR.A.RANJITH NARAYANAN RESPONDENTS/DEFENDANTS -------------------------------------------- 1. JANARDHANAN, S/O.LATE GOPALAN, CHEENGPPURA VEEDU, MATHAMANGALAM, KUPPADI AMSOM & DESOM, NAIKATTY P.O., SULTHAN BATHERY, WAYANAD DISTRICT. 2. VELAYUDHAN, S/O.KAPPU, THEKKAMPATTA HOUSE, NOOLPUZHA P.O., NOOLPUZHA AMSOM AND DESOM, SULTHAN BATHERY TALUK, WAYANAD DISTRICT. 3. MURALEEDHARAN, S/O.GANGADHARAN NAIR, CHELERIKKUNNU VEEDU, THRIKAIPATTA AMSOM, DESOM, VYTHIRI TALUK, WAYANAD. 4. P.K.ARAVINDAKSHAN, S/O.KUNHIKANNAKURUPPU, MATHAMANGALAM, NAIKATTY P.O., NOOLPUZHA AMSOM, DESOM, SULTHAN BATHERY TALUK, WAYANAD. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.21149 of 2009 - O --------------------------------- Dated this the 28th day of July, 2009 J U D G M E N T This writ petition is filed seeking the following reliefs: “i) To issue a Writ, Order or Direction in the nature of certiorari or other appropriate from of writ quashing Exhibit P4 order as the same in not in accordance with sound legal principles applicable and unsustainable. ii) To issue a Writ, Order of Direction in the nature of mandamus or other appropriate form of writ, commanding the lower court to grant leave to the petitioner to amend the plaint as prayed for in Exhibit P3 application” 2. The petitioner is the plaintiff in O.S.No.117/2007 on the file of the Munsiff-Magistrate Court, Sultan Battery. Suit was one for fixation of boundary and perpetual prohibitory injunction. Defendants 3 and 4 in the suit resisted the suit claim contending that they had obtained a sale certificate over the suit property pursuant to a decree proceeded against the mother of the first respondent, and, thereafter the judgment debtors in that case moved for setting aside the sale. But that was dismissed. The present petitioner/plaintiff contended that the predecessor of the W.P.(C).No.21149 of 2009 - O 2 first defendant had no exclusive right over the property and he too had one half right over the same. After written statement was filed by the contesting defendants 3 and 4 challenging the maintainability of the suit and also disputing the entitlement of the petitioner/plaintiff to seek the decree for putting up boundary and injunction, the reliefs claimed in his suit, it is submitted, when the case was posted for steps, he moved an amendment application. Ext.P3 is the copy of the amendment application raising allegations that the sale certificate obtained in favour of the third defendant is null and void and not binding on him. Declaratory relief thereof was also sought for. The learned Munsiff after considering the objections raised by the defendants 3 and 4, contesting defendants to the amendment application and hearing the counsel on both sides, dismissed that application vide Ext.P4 order. Correctness and propriety of Ext.P4 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. Having regard to the submissions made and the facts and circumstances presented W.P.(C).No.21149 of 2009 - O 3 and perusing Ext.P4 order impugned in the petition with reference to other materials produced, I find no notice to the respondent is necessary, and it is dispensed with. 4. Perusing Ext.P4 order, it is seen, the learned Munsiff has taken note of the litigations that had transpired earlier pursuant to the passing of the decree in favour of the third defendant which culminated in the sale of a property, which in auction was purchased by the third defendant. There is no dispute that the suit property is covered by the decree schedule property in the previous suit. It has also been noticed that the petitioner had appeared before the Special Tahsildar, Sultan Battery in a proceedings relating to the issue of a possession certificate and, pursuant to such enquiry, possession certificate issued to him was cancelled by order dated 23.7.2002. Ext.P1 suit is seen filed by the petitioner, five years later, after cancellation of the possession certificate, in which the third defendant, auction purchaser, was also a party. In that context, the suit as instituted was only for the relief of putting up boundary and prohibitory injunction, but, later, sought to be amended for a declaration to hold that the sale W.P.(C).No.21149 of 2009 - O 4 certificate issued in favour of the third defendant as not binding on the petitioner has to be appreciated. I find no impropriety or illegality in Ext.P4 order passed by the learned Munsiff that in the nature of the disputes presented, the amendment application filed for seeking additional relief of declaration on the allegations raised in Ext.P3 application cannot be allowed. The writ petition is devoid of any merit and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-