IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WP(C).NO. 20636 OF 2010(O) ----------------------------------------- AGAINST THE ORDER IN IA.2063/2009 IN OS.307/2005 OF MUNSIF COURT, KUTHUPARAMBA .................... PETITIONER(S): RESPONDENTS ---------------------------------------------- 1. THATTANTAVIDA PUTHIYA PURAYIL RADEEF ABDUL HAMEED, MAHAR HOUSE, PATHIRIYADU AMSOM, KELALLUR DESOM, MAMBARAM, THALASSERY. 2. MANIKKOTH PALLIKATIL ABDUL HAMMED, PATHIRIYADU AMSOM, KELALLUR DESOM, MAMBARAM, THALASSERY. 3. RAHEELA ABDUL HAMEED, EANAPPAYA MEDICAL COLLEGE, DERLAKKATTA NITYANANDA NAGAR.P.O, MANGALAPURAM. BY ADV. SRI.A.SUDHI VASUDEVAN SMT.K.PUSHPAVATHI SRI.K.NANDAKUMAR RESPONDENT(S): RESPONDENT ------------------------------------------------ NADUKKANDY ASHRAF @ ABDULLA ASHRAF, THIRUVANGAD AMSOM, CHALIL DESOM, CALIL.P.O, THALASSERY-691 340. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.20636 of 2010 ==================================== Dated this the 02nd day of July, 2010 J U D G M E N T Defendants in O.S.No.307 of 2005 of the court of learned Munsiff, Kuthuparambu are the petitioners before me. They are aggrieved by Ext.P4, order on I.A. No.2063 of 2009 allowing amendment of plaint consequent to the Advocate Commissioner submitting report and plan. According to the respondent-plaintiff, plaint A schedule item Nos.1 and 2 properties belong to him in the way pleaded in the plaint and on the strength of the documents referred to therein. It is also his case that plaint B schedule belongs to the petitioners and is situated on south of item No.1 and west of item No.2 of plaint A schedule. Respondent alleged that petitioners made illegal construction in plaint B schedule which areally trespassed into item Nos.1 and 2 of plaint A schedule and hence prayed for a decree for prohibitory injunction against petitioners trespassing into plaint A schedule and constructing building or interfering with boundaries so as to encroach into plaint A schedule and a mandatory injunction to remove that portion of the roof slab of building in plaint B W.P(C) No.20636 of 2010 -: 2 :- schedule which according to the respondent areally trespassed into plaint A schedule. Petitioners resisted the suit on various grounds. They claimed that they constructed building in the property allotted to them. Advocate Commissioner with the assistance of a Surveyor inspected the property and submitted report and plan. Advocate Commissioner reported that plot 'C' is the portion which petitioners allegedly trespassed into in plaint A schedule item No.1. In the light of that report respondent wanted the plaint to be amended making appropriate corrections in the plaint schedule and seeking a mandatory injunction to direct petitioners to remove structures in plot 'C' of the plan. That application was resisted by petitioners but allowed by the learned Munsiff vide Ext.P4, order. Learned counsel for petitioners contends that petitioners have serious objection to the report and plan and even without deciding it court below was not correct in allowing the application for amendment. It is also contended that respondent never had a case that description of property in the plaint schedule is not correct and hence amendment ought not have been allowed. According to the learned counsel amendment can be allowed only when it is necessary for just and fair decision of the controversy involved. W.P(C) No.20636 of 2010 -: 3 :- 2. It is not as if respondent had no case in the plaint regarding alleged trespass. It is averred in the plaint that petitioners are attempting to trespass into plaint A schedule and put up structures therein. There is also a prayer for removal of the said structures. According to the respondent it is from the report and plan submitted by the Advocate Commissioner that he learnt about the trespass into plot 'C' which is reported to be forming part of plaint A schedule item No.1. It is in the said circumstance that amendment was prayed for and allowed. I am unable to accept the contention that amendment in any way affected or changed nature and character of the suit though based on the report of Advocate Commissioner additional relief has been prayed for. I am also not inclined to think that amendment prejudiced the petitioners. It is open to them to raise appropriate contentions in the additional written statement against the amendment. Having gone through the order under challenge and hearing counsel I do not find reason to interfere with the order under challenge. Resultantly, Writ Petition fails and it is dismissed. I make it clear that it will be open to the petitioners to raise all their W.P(C) No.20636 of 2010 -: 4 :- contentions to the amended plaint and even to the report and plan submitted by the Advocate Commissioner in the appropriate manner. THOMAS P. JOSEPH, JUDGE. vsv