IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 9564 of 2009(O) ------------------------------------- OS.25/2001 of MUNSIFF COURT, KOLENCHERRRY .................... PETITIONER(S): ------------------------ 1. JAYA, D/O.BHARGAVI AMMA, AGED 30 YEARS, HOUSE WIFE, THEKKEDATHU HOUSE, PARIYARAM KARA, AIKKARANAD SOUTH VILLAGE, (PARAKKATTU PUTHENPURA, CHERUKUNNU KARA, THIRUVANIYOOR VILLAGE). 2. VENUGOPAL, AGED 41 YEARS, S/O.GOVINDAN, MOLATHUPUTHENVEETTIL, VADAYAMPADI KARA, AIKKARANADU SOUTH VILLAGE. BY ADV. MR.BASIL MATHEW RESPONDENT(S): ------------------------- KUMARI, AGED 45 YEARS, W/O.GOVINDAN PILLAI, THEKKINIYETH HOUSE, KOZHIKKATTUKARA, PUTHENCRUZ VILLAGE. R1 BY ADVS. MR.DINESH R.SHENOY, MR.V.V.UNNIKRISHNAN, MR.A.JOSEPH GEORGE, MR.G.HARIKRISHNAN (TRIPUNITHURA). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.9564/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 25/2001 ON THE FILE OF THE MUNSIFF COURT, KOLENCHERRRY. P2:- COPY OF THE WRITTEN STATEMENT IN OS. 25/2001 ON THE FILE OF THE MUNSIFF COURT, KOLENCHERRRY. P3:- COPY OF THE JUDGMENT DTD. 24.6.02 IN OS. 25/2001 ON THE FILE OF THE MUNSIFF COURT, KOLENCHERRRY. P4:- COPY OF THE JUDGMENT DTD. 28.7.07 OF SUB COURT, PERUMBAVOOR. P5:- COPY OF THE IA. 403/08 IN OS. 25/2001 ON THE FILE OF THE MUNSIFF COURT, KOLENCHERRRY. P6:- COPY OF THE OBJECTION FILED BY THE RESPONDENT IN IA. 403/08 IN OS. 25/2001 ON THE FILE OF THE MUNSIFF COURT, KOLENCHERRRY. P7:- COPY OF THE ORDER DTD. 23.1.2009 IN IA. 403/08 IN OS. 25/2001. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.9564 OF 2009 -------------------------- Dated this the 18th day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Set aside the order dated 23/01/2009 in I.A No.403/2008 in O.S No.25/2001 and allow I.A No.403/2008 on the file of Munsiff Court, Kolencherry. ii) Order the respondent to pay the petitioner's costs of the proceedings. iii) Grant such other reliefs as may be prayed for by the petitioner and which the Court deems fit and proper. 2. Petitioners are the plaintiffs in O.S No.25 of 2001 on the file of Munsiff Court, Kolencherry. Suit is one for perpetual prohibitory W.P.(C).No.9564 OF 2009 Page numbers injunction, and the respondent is the defendant. Suit was previously decreed against which the respondent preferred an appeal. The appeal was allowed and the case was remitted for fresh consideration providing an opportunity to the plaintiff to identify the suit property. Pursuant to that, an advocate commission was taken out a report and plan filed. The petitioners / plaintiffs moved an application for amending the plaint to seek additional reliefs of declaration and also for fixation of boundary. That application was opposed to by the respondent / defendant filing objections. The learned Munsiff after hearing the counsel on both sides dismissed thae application for amendment vide Ext.P7 order. Propriety and correctness of that 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 on both sides. The learned counsel for the petitioner submitted W.P.(C).No.9564 OF 2009 Page numbers that the proposed amendment is absolutely essential to resolve the controversies arising for adjudication between the parties in the suit. Suit was decreed previously, in favour of the petitioners / plaintiffs, and after remand, when the commissioner visited, it was noticed that fixing the boundary is essential to avoid multiplicity of proceedings, especially in the light of the contentions canvassed by the defendant in their written statement disputing the title, and thereafter amendment to the plaint seeking additional reliefs were sought for. Setting aside Ext.P7 order the learned counsel urged for allowing the application for amendment. The learned counsel appearing for the respondent / defendant submitted that no interference with Ext.P5 order is called for since the court below was perfectly justified in disallowing the amendment application in view of the limited scope of remand ordered by the appellate court which directed only for the identification of the suit property. The proposed W.P.(C).No.9564 OF 2009 Page numbers amendment would only prolong litigation and it cannot be allowed, is the further submission of the counsel. 3. Perusing Ext.P7 order, I find, the learned Munsiff was of the view that the remand order restricted the court from allowing the application for amendment. Another view that appears to have weighed with the court was that by the proposed amendment the character of the suit would be changed. Both the reasons stated by the court below cannot be approved. Order 6 Rule 17 of the Code of Civil Procedure enables a party to seek for an amendment which is absolutely essential for resolving the controversies arising in the suit . A fresh suit and multiplicity of proceedings can also be avoided by such amendment. Of course after the amendment made to Order 6 Rule 17 incorporating a proviso thereto, once after commencement of trial, any amendment applied for has to satisfy that despite due diligence it could W.P.(C).No.9564 OF 2009 Page numbers not have been applied earlier. I do find some force in the submission made by the learned counsel for the respondent, that the amendment was applied only after 1 ½ years after after the remand and it shows lack of due diligence on the part of the plaintiffs. Whatever that be, on the facts and circumstances presented, I find, to avoid multiplicity of proceedings, the proposed amendment is essential to resolve the controversies arising between the parties. The reasons stated by the learned counsel for disallowing the amendment are not correct. The learned counsel for the respondent urged that if at all the amendment is allowed it has to be given effect to only from the date of carrying the amendment in plaint. I find no justifiable reason to restrict the amendment as canvassed, and the normal rule that the amendment relate back to the date of suit has to follow in the present case. So much so, I hold that the amendment application filed by the petitioner has to be allowed but only on terms compensating the W.P.(C).No.9564 OF 2009 Page numbers injury likely to be suffered by the respondent / defendant by the belated application filed for seeking such relief. Ext.P7 order shall stand set aside and the amendment applicationallowed subject to the condition that the petitioner pay a sum of Rs.1,500/- as cost to the respondent / defendant. Cost so ordered shall be given to the counsel appearing for the respondent within three weeks and a memo filed on or before 12/10/2009. In default of payment of cost as directed, the writ petition shall stand dismissed without any further orders. Post on 14/10/2009. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv