IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 5758 of 2010(O) ------------------------- AGAINST THE ORDER IN IA 4437/2009 IN OS.670/1999 of ADDL.MUNSIFF COURT- I,KOZHIKODE .................... PETITIONER(S): --------------- 1. ALIYOT DINESH BABU.C., S/O.VELAYUDHAN, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT. 2. ALIYOT GEETHA, D/O.VELAYUDHAN, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT. 3. ALIYOT LATHA, D/O.VELAYUDHAN KOTTOOLI AMSOM AND DESOM, KOZHIKODSE DISTRICT. 4. ALIYOT GIRISH, S/O.VELAYUDHAN, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT. 5. ALIYOT SUDHA, D/O.VELAYUDHAN, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): --------------- 1. ALIYOT RAMACHANDRAN, S/O.IMBICHUTTY, VALIYAPARAMBIL HOUSE, KOZHIKODE. 2. ALIYOT BABU, S/O.IMBICHUTTY, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT. 3. ALIYOT VIJAYAN, S/O.IMBICHUTTY, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT. WP(C) NO.5758/2010 2 4. ALIYOT SURESH, S/O.IMBICHUTTY, KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT. 5. ALIYOT SETHUMADHAVAN, S/O.IMBICHUTTY KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT. 6. ALIYOT MADHUSOODHANAN, S/O.IMBICHUTTY KOTTOOLI AMSOM AND DESOM, KOZHIKODE DISTRICT. 7. ALIYOT MYTHILI, D/O.IMBICHUTTY, PILAKKOTT HOUSE, AZHINJILAM. 8. ALIYOT SAROJINI, D/O.IMBICHUTTY, VALIYAPARAMBIL HOUSE, RAMANATTUKARA, KOZHIKODE. 9. ALIYOT SOUMINI, D/O.IMBICHUTTY, MUNDANKATTUTHAZHAM HOUSE, KOZHIKODE. 10. ALIYOT VINODHINI, D/O.IMBICHUTTY, CHELIYIL HOUSE, KOTTAPPURAM P.O., PULIKKAL VIA, MALAPPURAM DISTRICT. 11.ALIYOT VISWANATHAN, S/O.KSAVAN, CHATHAMADATHTHAZHAM HOUSE, P.O.KOTTOLI, KOZHIKODE. 12. ALIYOT LEELA, , D/O.KSAVAN, CHATHAMADATHTHAZHAM HOUSE, P.O.KOTTOLI, KOZHIKODE. 13. ALIYOT DHARMARAJAN, S/O.APPUTTY, ALIYOT HOUSE, KUTHIRAVATTOM P.O., KOTTOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE. TALUK. 14. ALIYOT THANKAM, D/O.APPUTTY, ALIYOT HOUSE, KUTHIRAVATTOM P.O., KOTTOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE. TALUK. 15. ALIYOT SUNANDA, D/O.APPUTTY, ALIYOT HOUSE, KOTTOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE. TALUK. 16. ALIYOT LATHIKA, D/O.APPUTTY, ALIYOT HOUSE, KOTTOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE. TALUK. 17. ALIYOT THANKAM, D/O.THAMU, PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK. 18. ALIYOT MANDAKINI, D/O..THAMU, PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK. 19. ALIYOT SIVADASAN, S/O.VELAYUDHAN, KOTTOOLI AMSOM, PARYANCHERI DESOM, KOZHIKODE TALUK. WP(C) NO.5758/2010 3 20. ALIYOT LALURAJ, S/O.VELAYUDHAN, KOTTOOLI AMSOM, PARYANCHERI DESOM, KOZHIKODE TALUK. 21. ALIYOT LEELA, W/O.VELAYUDHAN, KOTTOOLI AMSOM, PARYANCHERI DESOM, KOZHIKODE TALUK. 22. LALITHA, D/O.VELAYUDHAN, (DIED), 'RAGHU RESHMI', ANNIE HALL ROAD, NAGARAM AMSOM & DESOM, KOZHIKODE TALUK. 23. RAJEEV PANNAKKAL, S/O. VELAYUDHAN, 'RAGHU RESHMI', ANNIE HALL ROAD, NAGARAM AMSOM & DESOM, KOZHIKODE TALUK. 24. SANJEEV PANNAKKAL, D/O. VELAYUDHAN, 'RAGHU RESHMI', ANNIE HALL ROAD, NAGARAM AMSOM & DESOM, KOZHIKODE TALUK. 25. SUDHA RAJAN, D/O. VELAYUDHAN, 'RAGHU RESHMI', ANNIE HALL ROAD, NAGARAM AMSOM & DESOM, KOZHIKODE TALUK. ADV. SRI.V.V.SURENDRAN FOR R23 & R24 SRI.P.A.HARISH FOR R 23 & R24 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C0 NO.5758/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE APPLICATION FOR AMENDMENT EXT.P2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY DEFENDANTS 23 TO 26 DATED 14.12.2009 EXT.P3 TRUE COPY OF THE ORDER IN IA 4437/2009 IN OS 670/1999 ON THE FILE OF ADDL.MUNSIFF'S COURT-I., KOZHIKODE DATED 5.1.2010 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.5758 of 2010 -------------------------------------- Dated this the 24th day of September, 2010. JUDGMENT Plaintiffs in O.S.No.670 of 1999 of the court of learned Additional Munsiff-I, Kozhikode challenge Ext.P3, order dated 05.01.2010 dismissing I.A.No.4437 of 2009. O.S.No.670 of 1999 is a suit for partition filed by petitioners. Originally the suit was dismissed and petitioners preferred A.S.No.172 of 2004. During pendency of the appeal respondents produced a document which was marked as Ext.B15. In the light of that document, judgment and decree in the suit were set aside and the case was remitted to the trial court for fresh disposal with opportunity for petitioners to challenge Ext.B15. Petitioners filed I.A.No.3591 of 2009 for amendment of plaint seeking cancellation of Ext.B15. That application was allowed. Later petitioners filed I.A.No.4437 of 2009 to state that Ext.B15 (marked in the appellate court) is null and void, not binding on petitioners or the suit property and it may be declared so. That application was opposed by respondents. Learned Munsiff found that the amendment prayed for vide I.A.No.4437 of 2009 is only as regards the relief portion to delete the prayer for cancellation of Ext.B15, document and to incorporate prayer for a declaration that the said document is null and void and not binding on suit property or petitioners but, no corresponding amendment was sought for in the body of plaint. For that reason I.A.No.4437 of 2009 was WP(C) No.5758/2010 2 dismissed as per Ext.P3, order. That order is under challenge. Learned counsel contends that Ext.P3, order is not correct and at any rate petitioners may be permitted to make a fresh application curing defects. I have heard learned counsel for respondents also. It is pointed out that attempt of petitioners is to protract the litigation. 2. It is not disputed that A.S.No.172 of 2004 was allowed and the case was remitted to the trial court for fresh decision with opportunity to the petitioners to challenge Ext.B15, a document allegedly executed by their predecessors-in-interest. It is accordingly that petitioners obtained amendment of plaint vide order on I.A.No.3591 of 2009 seeking cancellation of the said document. It would appear that respondents filed additional written statement raising a plea that since cancellation of the document is called for petitioners are required to pay court fee accordingly and as the learned counsel for respondents submits, an order on that line was passed by the trial court. It is thereon that petitioners filed I.A.No.4437 of 2009 seeking a declaration as first above stated. Here, the document in question is allegedly executed by the predecessors-in- interest of petitioners and petitioners challenge that document on vitiating circumstances which according to them made the document null and void and not binding on suit property or themselves. Petitioners therefore wanted a declaration in that line. Learned Munsiff dismissed the application only for the WP(C) No.5758/2010 3 reason that amendment is sought for only with respect to the relief portion in the plaint and there is no corresponding amendment sought for in the body of plaint. Learned Munsiff is correct in observing so. For, the body of plaint if states that the document is required to be cancelled, relief cannot be for a declaration that the document is null and void. The relief must correspond to the averments in the body of plaint. In that view learned Munsiff is correct in dismissing I.A.No.4437 of 2009 and no interference is required with respect to Ext.P3, order. 3. Then the next question is whether petitioners must be given an opportunity to seek amendment of plaint as requested in I.A.No.4437 of 2009. I stated that learned Munsiff has not decided the issue regarding amendment on merit and found that petitioners are not entitled to amend the plaint as requested. Having regard to the circumstances, I am inclined to permit petitioners to move appropriate fresh application for amendment to incorporate relief sought for by amendment vide I.A.No.4437 of 2009 and to incorporate necessary averments in the body of plaint corresponding to the relief asked for. I make it clear that permission granted is only to the above extend. Petitioner shall file such application if any within one month from this day failing which it will be open to the learned Munsiff to proceed in the matter as if there is no request for amendment. WP(C) No.5758/2010 4 Resultantly this Writ Petition is dismissed but, without prejudice to the right of petitioners to move a fresh application for amendment to incorporate relief prayed for by amendment vide I.A.No.4437 of 2009 with appropriate corresponding amendment in the body of plaint. Such application if any shall be filed within one month from this day. Learned Munsiff shall consider such application, if preferred as provided under law and pass appropriate orders on merit. THOMAS P.JOSEPH, Judge. cks