IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 WP(C).No. 5581 of 2009(O) ------------------------- OS.144/2007 of MUNSIFF COURT,VARKALA .................... PETITIONER(S): --------------- 1. RADHAKRISHNAN, S/O.SREEDHARAN PILLAI, AGED 36 YRS,RESIDING AT KUNNUVILA VEEDU, MAVINMOODU,MULLARAMCODE DESOM, OOTTOOR VILLAGE, TRIVANDRUM DISTRICT. 2. SISUPALAN, AGED 41,RESIDING AT KUNNUVILA VEEDU, MAVINMOODU, MULLARAMCODE DESOM,OOTTOOR VILLAGE, TRIVANDRUM DISTRICT. BY ADV. SRI.J.S.AJITHKUMAR RESPONDENT(S): --------------- 1. BALACHANDRAN NAIR,S/O.KRISHNA PILLAI, AGED 53,ASWATHY, MULLARAMCODE DESOM, OOOTOOR VILLAGE,TRIVANDRUM DISTRICT. 2. K.SUDARSANAN NAIR,S/O.KRISHNA PILLAI, AGED 47, K.S.NIVAS, MULLARAMCODE DESOM, OOTTOOR VILLAGE, TRIVANDRUM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.5581 of 2009 --------------------------------------------- Dated this the 19th day of February, 2009 JUDGMENT The petitioners, who are defendants in O.S.No.144/07 on the file of the court of the Munsiff of Varkala, challenge the order dated 5th January 2009 in I.A.No. 1067/08 by which the court below allowed the application for amendment of the plaint filed by the respondents/plaintiffs. 2. The suit was filed by the respondents for a perpetual prohibitory injunction restraining the defendant Nos.1 and 2 from making unlawful entry into the plaint schedule property, from constructing road or pathway through it or causing to do any act which will cause obstruction to the peaceful possession and enjoyment of the plaintiffs and the third defendant over the property. The plaintiffs filed I.A.No.1067/08 for amendment of the plaint to incorporate a prayer for mandatory injunction directing the defendants to restore the lie of the plaint schedule property to its original position. In the affidavit in support of the application for amendment, the second WPC No.5581 /2009 2 plaintiff stated that an order of temporary injunction was granted against the defendants and the defendants encroached upon the plaint schedule property and cut open a road through the property in violation of the order of interim injunction. In the application for amendment, the plaintiffs stated that they are relinquishing their right to realise damages from the defendants for the sake of shortening the contentions in the litigation. 3. Defendant Nos.1 and 2 opposed the application for amendment of plaint. They contended that the averments made in the application are not true. They stated that they do not have any property in the neighbourhood. The second defendant is residing 12 kms. away from the property. They never trespassed upon the plaint schedule property. They also raised a contention that a pathway was in existence through the plaint schedule property even earlier. No change was made to the pathway. The widening of the pathway was made with the co-operation of the inhabitants of the colony. No act was done by the defendants in violation of the order of temporary injunction. The court below, by the order impugned, allowed the application for amendment. 4. The learned counsel for the petitioners submitted that WPC No.5581 /2009 3 the court below was not justified in allowing the amendment, in the facts and circumstances of the case. He submitted that the Commissioner’s report would indicate that the averments made in the affidavit in support of the application for amendment of plaint are incorrect and untrue and therefore, the court below should have dismissed the application. It is well settled that truth or falsity of the allegations made in the application for amendment is not a matter to be decided by the court at the time of deciding the question whether the amendment of plaint should be allowed. The suit was originally filed for permanent prohibitory injunction. The case of the plaintiffs is that after the filing of the suit, certain offending acts were done by the defendants 1 and 2. The reliefs sought for by way of amendment is for mandatory injunction to undo the offending acts. 5. The question whether the plaintiffs are entitled to the reliefs as prayed for or whether the case put forward by them is true or not, are all matters to be considered at the time of trial. The court below need not consider the merits of the case at the time of considering the application for amendment. I do not think that the court below has committed any illegality or WPC No.5581 /2009 4 irregularity in allowing the application. There is no error of jurisdiction, either. The Writ Petition lacks merits and it is accordingly dismissed. K.T.SANKARAN, JUDGE csl