IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 WP(C).No. 24707 of 2010(O) -------------------------- OS.156/2007 of MUNI-MAGI.COURT,MANNARKAD .................... PETITIONER: --------------- ALAVI, S/O.PARAKKAL AYAMU, EDATHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK, P.O.EDATHANATTUKARA, PIN-678 601. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT: --------------- HAJIRA, W/O.ABDUL NAZAR, CHATHURALA, RESIDING AT EDATHANATTUKARA AMSOM & DESOM, MANNARKKAD TALUK - 678 601. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.24707 of 2010 --------------------------------------- Dated this 06th day of August, 2010 JUDGMENT Defendant in O.S.No.156 of 1997 of the court of learned Munsiff-Magistrate, Mannarkkad are the petitioner before me. They are concerned with the order on I.A.No.257 of 2010 allowing application for amendment of plaint schedule to correct one of the boundaries mentioned therein. Respondent filed suit for prohibitory injunction to restrain petitioner from causing obstruction to her enjoyment of plaint B schedule way which according to her lead to plaint A schedule belonging to her. Petitioner denied existence of plaint B schedule way. Advocate Commissioner inspected the property and submitted report accompanied by a sketch (Ext.P3). In that report Advocate Commissioner has shown the disputed way as originating from north eastern corner of plaint A schedule, going towards further east and reaching public road running north-south. In the plaint schedule (Ext.P1) northern boundary of plaint A schedule property is stated as plaint B schedule way but, from the report of Advocate Commissioner it is revealed that on the north of plaint A schedule (though as I stated disputed pathway originates W.P.C.No.24707 of 2010 : 2 : from north eastern corner of plaint A schedule and went towards east) it is the property of one Mohammed. When respondent is examined as PW1 she stated that on the entire northern portion of plaint A schedule it is plaint B schedule which of course was not correct. Thereon, respondent filed I.A.No.257 of 2010 for correction. What is sought to be corrected is the northern boundary description of plaint A schedule. That application was opposed but, allowed by the learned Munsiff-Magistrate. It is contended by learned counsel that attempt of respondent is to fill up lacuna in the case of respondent and that at any rate, amendment after the commencement of trial ought not have been permitted. 2. It is true that in the plaint A schedule northern boundary is stated as B schedule way. But the Commissioner has reported that on the north of plaint A schedule (though as I stated disputed pathway originates from the north eastern corner of plaint A schedule and went towards east) it is the property of one Mohammed. I am not inclined to think that what respondent has stated in evidence is absolutely incorrect. The correct boundary is now sought to be incorporated to plaint A schedule. I am also not inclined to think that it is as if respondent wanted to W.P.C.No.24707 of 2010 : 3 : fill up the lacuna. Lacuna is understand as the inherent wedge in the case. Wrong boundary description of property unless that affected the claim of respondent/plaintiff cannot be said to be an inherent wedge in the case. Dispute is concerning existence of plaint B schedule way and not whether property on the north of plaint A schedule is that of Mohamed or not. If existence of plaint B schedule and the right claimed by respondent is proved then the court has to consider whether respondent is entitled to the relief prayed for. For the mere reason that some mistake was made in cross examination of PW1 request for amendment cannot be disallowed. Order 6 Rule 17 of the Code of Civil Procedure enables correction of mistakes to ensure that real dispute between the parties is settled in the very same suit. 3. On the question whether after the trial commenced such amendment could have been allowed, this court has stated in M.P.Rajasekharan Nair Vs. Raju and Anr. (2003 (2) KLJ 847) and Eapen Antony Vs. Joseph and Anr. (2009(1) ILR (Kerala) 712) as to the various circumstances that would occur and which might be detected even after commencement of the trial and which may require amendment of pleadings. It is probable that it was when a question was put to respondent as W.P.C.No.24707 of 2010 : 4 : PW1 and she gave an affirmative answer regarding northern boundary of plaint A schedule that counsel and respondent were alerted about discrepancy regarding the northern boundary. Having regard to the facts and circumstances and position of law as stated in the decisions referred to supra I am not persuaded to think that this is a case where supervisory jurisdiction under Article 227 of the Constitution is to be invoked. Learned counsel states that learned Munsiff-Magistrate has made certain observations in the impugned order going to the merit of the case. I make it clear that if any such observation is made that shall not affect learned Munsiff-Magistrate deciding the issue involved after trial of the case. Writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-