IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 34549 of 2009(O) --------------------------------------- [OS.NO.38/2008 OF THE MUNSIFF COURT, KOCHI] .................... PETITIONER: ------------------- THRESIAMMA, W/O. ANTONY, AGED 50 YEARS, VATTAMAKKAL HOUSE, RAMESWARAM PADINJAREMURI, THOPPUMPADY VILLAGE, KOCHI TALUK. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE, ADVS. SRI.MAHESH V RAMAKRISHNAN, SRI.S.SUJIN. RESPONDENT: ---------------------- THANKAMANI, W/O. LATE ALEXANDER, AGED 48 YEARS, VATTAMAKKAL HOUSE, RAMESWARAM PADINJAREMURI, THOPPUMPADY VILLAGE. BY ADV. SRI.B.KRISHNA MANI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34549/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 38/2008 ON THE FILE OF THE MUNSIFF COURT, KOCHI. EXT.P.2: COPY OF THE WRITTEN STATEMENT DTD. 12/02/2008 FILED BY THE DEFENDANT. EXT.P.3: COPY OF THE PETITION I.A. NO.561/2008. EXT.P.4: COPY OF THE ORDER DTD. 30/10/2009 OF THE MUNSIFF COURT, KOCHI IN I.A. NO. 561/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.34549 Of 2009 ---------------------- Dated this the 7th day of October, 2010. J U D G M E N T The plaintiff in O.S.No.38 of 2008 on the file of the Munsiff Court, Kochi is the petitioner. The writ petition is filed seeking to set aside Ext.P4 order and to allow Ext.P3 application. Ext.P1 is the plaint. The prayer in the plaint is to declare the plaintiff's right of easement by prescription and necessity over C schedule pathway and to restrain the defendant, his men and agents from destroying plaint C schedule pathway and to prevent its convenient use and enjoyment. 2. Plaint A & B schedule properties belongs to the plaintiff and defendant respectively. A schedule property is lying on the east of B schedule property. Plaint C schedule is described as pathway lying on the north of plaint B schedule property and ends at the western boundary of plaint A schedule property. In paragraph 1 of the plaint it is averred that the plaint schedule property and the properties of the defendant are lying together continuously without any specific boundaries. The prayer in the W.P.(C).No.34549 Of 2009 ::2:: suit is only for a declaration of easement right by prescription and necessity and for consequential injunction. Though it is averred in the plaint that there is no specific boundary in between the properties of the plaintiff and defendant there is no prayer in the plaint for fixation of boundary. 3. The properties of the plaintiff and defendant are lying side by side. According to the plaintiff there is no demarcation between the two properties. The suit was filed in January, 2008. In march 2008, the plaintiff filed I.A.No.561 of 2008 under Order VI Rule 17 of the Code of Civil Procedure seeking permission of the court to amend the plaint. The affidavit and petition are marked as Ext.P3. In Ext.P3 affidavit it is also stated that the plaintiff came to know from well known sources that the defendant is making preparations to sell B schedule properties to strangers, that till date the plaintiff had not insisted for specific demarcation of pathway because the B schedule property was possessed by plaintiff's close relative. Due to the present move of he defendant to alienate the property, it is further averred that the plaintiff wanted to protect the pathway. It is also stated that W.P.(C).No.34549 Of 2009 ::3:: the entire property namely, A & B schedule properties and the property which stands in the name of the husband of the plaintiff and defendant are lying together and there is no specific demarcation in between the properties separating the same. In the circumstances the plaintiff filed Ext.P3 application to amend the plaint to incorporate necessary pleading so that a permanent boundary can be fixed between A & B schedule properties. Munsiff Court considered the above said I.A and passed Ext.P4 order. Learned Munsiff held that the suit was filed for declaration of easement right. Now by inserting the prayer for putting up boundary the plaintiff is seeking to alter the suit as a suit for fixation of boundary. In such situation according to the learned Munsiff the amendment will change the character of the suit and that material alterations has to be made in the pleadings and the same will cause prejudice to the defendant. For the said reason Ext.P4 order was passed. 4. I do not think that the reasons stated by the court below denying the relief of the plaintiff can be sustained. As I have pointed out earlier there is no definite boundary between W.P.(C).No.34549 Of 2009 ::4:: the properties of the plaintiff and defendant. The suit was filed at a time when there is apprehension of meddling of plaint C schedule pathway by the defendant. Suit was filed for declaration of easement right. The insertion of a prayer for fixation of boundary no doubt will not change the character of the suit. In fact, on the changed circumstances pointed out in the affidavit filed in support of the petition, insertion of a prayer for fixation of boundary is necessary. The amendment is also necessary for avoiding multiplicity of suits. There is no case for both sides that there is a definite boundary in between the properties. There is averment in the original plaint itself regarding the fact that there is no fixed boundary. So, it may not be correct to say that the amendment will cause prejudice to the opposite side. In fact, the amendment is necessary for resolving all the disputes between the parties. The plaintiff is well aware of the fact that there is no boundary mark between the two properties. Therefore, the plaintiff could have inserted a prayer for putting up a boundary in the original plaint itself. The said conduct of the plaintiff had led to the present proceedings before W.P.(C).No.34549 Of 2009 ::5:: this Court also. In the said circumstances, the plaintiff is bound to compensate the cost of the defendant. 5. In the result, Ext.P4 oder is set aside. Ext.P3 petition is allowed on condition that the petitioner shall pay Rs.2,000/- (Rupees Two Thousand only) as cost to the counsel for the respondent within a period of two weeks from today failing which Ext.P4 order passed by the Munsiff Court shall stand confirmed. Writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-