IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 OP(C).No. 135 of 2011(O) ------------------------------------- IA. 930/2010 IN OS.207/2009 of MUNSIFF MAGISTRATE, ERATTUPETTA .................... PETITIONER -------------------- LORANCE JOSEPH, SON OF JOSEPH, NAMBUDAKATH, THALAPPALAM KARA, MOONNILAVU VILLAGE, KOTTAYAM DISTRICT, PIN-686 586. BY ADV. SRI.ABRAHAM GEORGE JACOB RESPONDENT(S): ------------------------- 1. MATHEW JOSEPH, SON OF JOSEPH, PARACKAL HOUSE, THIDANADU KARA, KONDOOR VILLAGE, KOTTAYAM DISTRICT, PIN-686 123, KONDOOR P.O. 2. JOSEPH, SON OF LUKA, MUTHALAKKUZHI, THALAPPALAM KARA, MOONNILAVU VILLAGE, MOONNILAVU P.O., KOTTAYAM DISTRICT, PIN-686 586. R1 & R2 BY ADV. SRI.TOM JOSE (PADINJAREKARA) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.135/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REGISTERED AGREEMENT DTD. 10.3.2006. P2:- COPY OF THE PLAINT IN OS. 207/2009 BEFORE THE COURT OF THE MUNSIFF , ERATTUPETTA. P3:- COPY OF THE WRITTEN STATEMENT DTD. 15.2.2010 FILED BY THE FIRST RESPONDENT. P4:- COPY OF THE WRITTEN STATEMENT DTD. 29.1.2010. P5:- COPY OF THE IA. 930/2010, THE APPLICATION TO AMEND THE PLAINT DTD. 15.12.2010. P6:- COPY OF THE COUNTER AFFIDAVIT FILED BY THE IST RESPONDENT TO IA. 930/2010 DTD. 17.12.2010. P7:- COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT TO IA. 930 OF 2010 DTD. 18.12.2010. P8:- COPY OF THE ORDER DTD. 4TH JANUARY 2011 IN IA. 930/2010 IN OS. 207/2009 OF THE COURT OF THE MUNSIFF, ERATTUPETTA. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.135 of 2011 -------------------------------------- Dated this the 4th day of August, 2011. JUDGMENT Petitioner is the plaintiff in O.S.No.207 of 2009 of the court of learned Munsiff-Magistrate, Erattupetta. That is a suit for injunction filed by petitioner against respondents 1 and 2 causing obstruction to his using item-II which according to him is a road. It is the case of petitioner that as per Ext.P1, registered agreement dated 10.03.2006 executed between himself and second respondent, he was permitted to construct a road and accordingly he constructed the said road (item-II). Later portion of the property through which the road passes was transferred to first respondent by the second respondent. It is alleged that on 02.11.2009 there was an attempt to obstruct user of the road which necessitated institution of the suit. Respondent filed written statement on 15.02.2010 contending that petitioner has no right in the road in question and Ext.P1, agreement is merely a licence which was revoked. Respondents also pointed out certain other defects in the plaint including survey number of item-I stated in the plaint schedule. Case came up for trial in the list on 01.10.2010 and later, on 03.12.2010 . That day petitioner filed I.A.No.904 of 2010 to remove the case from the list on the ground that petitioner is hospitalized. Though the application was dismissed the case was posted on 07.12.2010 to record evidence of the petitioner. While so petitioner filed I.A.No.930 of 2010 for amendment of the plaint and I.A.No.931 of 2010 to remove the case from the OP(C) No.135/2011 2 list. The application for amendment was resisted by respondents on various grounds including that whatever defects now sought to be corrected by amendment were pointed out by them in the written statement dated 15.02.2010 but no steps were taken at the appropriate time. Learned Munsiff-Magistrate accepted that objection and dismissed I.A.No.930 of 2010 by Ext.P8, order which is under challenge. 2. It is contended by learned counsel for petitioner that dismissal of I.A.No.930 of 2010 is not justified. It is pointed out that though the pleadings sought to be incorporated by amendment were not stated in the plaint, Ext.P1, agreement based on which amendment is sought was produced along with the plaint and hence that could be treated as part of the pleadings. It is pointed out that in the circumstances amendment will not either alter the nature of the suit or cause prejudice to the respondents. Learned counsel pointed out that execution of Ext.P1, agreement is not disputed by the second respondent. (respondents have a contention that it is a licence which was revoked and hence does not remain in force.) Now the amendment sought for is to incorporate a plea that petitioner has got a right over item-II by easement by way of grant or alternatively by way of irrevocable licence in view of Ext.P1, agreement. The other prayer is to correct survey number of the items. There cannot be a dispute that the application for amendment is highly belated in that written statement was filed on 15.02.2010 and the case was originally listed for trial on 01.10.2010. But I.A.No.930 of 2010 was filed only on 15.12.2010. But, having OP(C) No.135/2011 3 regard to the circumstances which I have stated above including that Ext.P1, agreement was produced along with the plaint, dismissal on account of the mere delay in preferring I.A.No.930 of 2010 was not correct. I am inclined to allow the amendment on terms of cost since there was considerable delay on the part of petitioner in seeking amendment. Resultantly this Original Petition will stand allowed, Ext.P8, order will stand set aside and I.A.No.930 of 2010 will stand allowed on condition that petitioner paid to the respondents through counsel `2,500/-(Rupees two thousand and five hundred only) by way of cost within two weeks from this day. On such payment I.A.No.930 of 2010 will stand allowed. In that event, petitioner shall carry out amendment within two weeks from the date of receipt of a copy of this judgment in the trial court. In case the above said condition is not complied this Original Petition will stand dismissed in confirmation of Ext.P8, order. Needless to say that if the above said condition is complied and amendment is carried out, respondents will have the opportunity to file additional written statement to the amended plaint. I.A.No.7823 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks