IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WP(C).No.33110 of 2008 (N) ---------------------------------- AGAINST THE ORDER DATED 14/11/2006 IN IA 4437/06 IN OS.241/2005 of PRL.M.C.,NEYYATTINKARA .................... PETITIONER: --------------- N.RAGHAVAN NAIR, ADVOCATE, S/O.NARAYANA PILLAI, RAKENDU, NEAR GOVT.GIRLS HIGH SCHOOL, PARASSALA, PARASSALA VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.P.KESAVAN NAIR RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. DISTRICT SUPERINTENDENT OF SURVEY AND LAND RECORDS, COLLECTORATE, THIRUVANANTHAPURAM. 3. SPECIAL GRADE PANCHAYATH PARASSALA REP. BY SECRETARY, SPECIAL GRADE PANCHAYATH PARASSALA. 4. S.RAJALEKSHMY, D/O.SARASAMMA, RAKENDU, PARASSALA P.O., PARASSALA. 5. N.VIJAYAN NAIR, S/O.NARAYANA PILLAI, THEKKE PUTHU VEEDU, NEDUMCODE, PARASSALA P.O. 6. N.BALACHANDRAN NAIR, S/O.NARAYANA PILLAI, THEKKEPUTHU VEEDU, NEDUMCODE, PARASSALA P.O. WP(C).No.33110 of 2008 (N) -2- 7. INDIRA DEVI, D/O.KAMALAMMA PILLAI, BHAGAVATHY VILASOM VEEDU, ARAMANNAM, THIRUVATTAR VILLAGE, KULASEKHARAM, KANYAKUMARI DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.33110 of 2008 ------------------------------------------------ Dated this the 12th day of November, 2008 JUDGMENT The petitioner is the second plaintiff in O.S.241/05 on the file of the Principal Munsiff's Court, Neyyattinkara. He moved an application for amendment of plaint vide I.A.4437/06 and that was dismissed by the court below vide Ext.P4 order dt.14/11/06. It is submitted that as the plaintiff was absent the suit also was dismissed on 14/11/06. However, the suit was subsequently restored on 09/04/07 vide order on I.A.5078/06 as reported by the Munsiff. The plaintiff filed I.A.5383/06 for review of Ext.P4 order dismissing I.A.4437/06. Ext.P5 is the application so filed. According to the petitioner, no order is passed on the said application, but the said I.A is posted along with the suit which is posted for trial in the W. P. C. No.33110 of 2008 -2- list to 13/11/08. A report was obtained from the Munsiff through the Registry and the report is as follows:- “I.A. No.5383/2006 is a petition seeking for review of the order dated 14-11-2006 in I.A. No.4437/2006. I.A. No.4437/2006 had been dismissed on 14-11-2006 through a separate order. One among the reasons in the said order was that there was no compliance of Sec.80CPC. I found that the claim put forth through the amendment was not capable of being admitted into the suit. The suit happened to be dismissed for default on 14-11-2006 as the plaintiff was absent. The suit was subsequently restored as per order in I.A. No.5078/2006 dated 09-4-2007. I have passed an order in the I.A. No.5383/2006 stating that the earlier order went wrong in as much as the same was decided in a premature way. The question whether the amendment is permissible was stated to be left open for determination at a later stage while appreciating evidence. As the suit happened to be dismissed, the review petition could be considered only after service of notice and the suit was restored. Both parties had sought for time and hence, the delay occurred. The point whether the amendment can be permitted shall be decided without delay and at an earliest opportunity. The amendment application shall be considered in the light of the other records available at the earliest.” 2. It is seen from the said report that an order is passed on I.A.5383/06 by the Munsiff stating that the earlier order went W. P. C. No.33110 of 2008 -3- wrong inasmuch as the same is decided in a premature way. The reference obviously is to Ext.P4 order. He has further stated that the question whether the amendment is permissible was being left open for determination at a later stage while appreciating evidence. But however, the suit also happened to be dismissed though it was later restored. The question as to whether amendment has to be allowed or not is to be decided before inclusion of the suit in the list as other formalities also will have to be complied with to render the suit ripe for trial in case the amendment is allowed. In no event can an amendment application be posted along with the suit to be considered while appreciating evidence that may be adduced. 3. In the result, I dispose of this Writ Petition quashing Ext.P4 and directing the W. P. C. No.33110 of 2008 -4- court below to consider and dispose of the said application afresh (I.A.4437/06) on merits and pass appropriate orders before the suit is included for trial in the list. In view of the above direction I.A.5383/06 may become unnecessary. K.P.BALACHANDRAN, JUDGE kns/-