IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 33525 of 2008(N) --------------------------------------- OS.212/1998 of I ADDL.MUNSIFF COURT, NEYYATTINKARA .................... PETITIONER(S): ---------------------- SNEHAPPU MERCY LOWERENCE, MANCHADIVILA VEEDU, MUKKOLAIKKAL, KARIPPURU VILLAGE, NEDUMANGADU TALUK. BY ADV. MR.K.RAJESH KANNAN MR.HARIKUMAR.N. RESPONDENT(S): ------------------------ 1. ISREAL NELSON, LATHIKA VILASOM, MILAKKARA, MUKUNTHANTHARA,KALLIKKADU VILLAGE. 2. ISREAL WILSON, GRACE COTTAGE, VATTIYOORKAVU, PUTHICHAKONAM, RANDMADA, THIRUVNANTHAPURAM. 3. ISREAL STEPHEN, PANDARAVILA PUTHEN VEEDU, MUKUNTHANTHARA, KALLIKKADU. 4. ROBINSON, PANDARAVILA PUTHEN VEEDU, MUKUNTHANTHARA, KALLIKKADU. 5. BENSON, PANDARAVILA PUTHEN VEEDU, MUKUNTHANTHARA, KALLIKKADU. 6. DENNISON, PANDARAVILA PUTHEN VEEDU, MUKUNTHANTHARA, KALLIKKADU. 7. LILLY STELLAMMA, ST. MARY VILLA, NEAR POLICE CIRCLE OFFICE, KATTAKKADA. 8. MANASS RADHA, PANDARAVILA PUTHEN VEEDU, MILAKKARA, MUKUNTHANTHARA, KALLIKKADU. WP(C).No. 33525 of 2008(N) 9. SMITHA , D/O. RADHA, PANDARAVILA PUTHEN VEEDU, MILAKKARA, MUKUNTHANTHARA, KALLIKKADU. 10. SAJITH JOHN, PANDARAVILA PUTHEN VEEDU, MILAKKARA, MUKUNTHANTHARA, KALLIKKADU. 11. SAJITHA, D/O. RADHA, PANDARAVILA PUTHEN VEEDU, MILAKKARA, MUKUNTHANTHARA, KALLIKKADU. R6 BY ADV. MR.K.B.PRADEEP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 33525/2008-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.212/98 FILED BEFORE THE MUNSIFF'S COURT, NEYYATTINKARA. EXT.P2: COPY OF THE I.A.2235/2005 IN O.S.212/98. EXT.P3: COPY OF THE I.A.4532/06 IN O.S.212/98. EXT.P4: COPY OF THE JUDGMENT DATED 05/07/2007 IN WP(C) NO. 20656/2007. EXT.P5: COPY OF THE COMMON ORDER DATED 08/08/2008 IN I.A.2235/2005 & I.A.4532/2006 IN O.S.212/98. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.33525 of 2008 - N --------------------------------- Dated this the 17th day of August, 2009 JUDGMENT The writ petition is filed seeking the following reliefs: “i) To set aside Exhibit P5. ii) To direct the Additional Munsiff-I, Neyyattinkara to consider Exhibits P2 and P3 amendment applications afresh and pass appropriate orders on the same.” 2. Petitioner is the plaintiff in O.S.No.212 of 1998 on the file of the I Additional Munsiff Court, Neyyattinkara. Suit is one for partition in which a preliminary decree was passed. That preliminary decree was challenged in appeal by some of the contesting defendants. While that appeal was pending, plaintiff moved an application for amending the plaint schedule and also the preliminary decree in respect of plaint item No.4 to show the extent previously shown was much less and it should be corrected as shown in her application. The learned Munsiff allowed that application and it was challenged by the defendants before this Court by filing the writ petition. This court set aside the order passed by the learned Munsiff directing disposal of the W.P.(C).No.33525 of 2008 - N 2 application, after hearing the defendants as well. Pursuant thereto the learned Munsiff heard both sides and disposed the application vide P5 order taking note that by virtue of the appellate court decree there was a merger of the preliminary decree passed by the court with that of the appellate court and so much so any application for amendment should be moved only before the appellate court. Vide P5 order, the amendment applications moved by the plaintiff for amending the plaint and also the preliminary decree were dismissed. Challenging the propriety and correctness of P5 order, petitioner/plaintiff has filed this 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. 4. The learned counsel for the petitioner/plaintiff submitted that the applications moved before the trial court are perfectly maintainable and the learned Munsiff was not justified in dismissing them vide P5 order. I cannot agree. When the appellate court has disposed the appeal on merit by passing a decree, there is a merger of that decree with the decree passed W.P.(C).No.33525 of 2008 - N 3 by the trial court. Once there is such a merger, it is not open to the trial court to effect any amendment to the plaint or to the decree. I do not find any impropriety or illegality in the order passed by the learned Munsiff holding that the amendment to the decree, once there is a merger, can be permitted to be carried out only by the court which passed the appellate decree. That question of amendment of the plaint also deserves to be considered by the appellate court provided that, if there are sufficient grounds entitling the plaintiff to sustain the amendment sought for. Reserving the right of the petitioner to approach the appellate court and seek for amendment, if so advised, the writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-