IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 OP(C).No. 2898 of 2011(O) ------------------------- AGAINST THE ORDER DATED 16/08/2011 IN IA 1096/2011 IN OS.132/2010 of MUNSIFF'S COURT, MAVELIKKARA .................... PETITIONER/IST PLAINTIFF: -------------------------------------------- LAISAMMA DAVISON, AGED 48 YEARS, W/O.DAVISON AUGUSTINE, KOTTAYIL VEETTIL, MANAKKADU MURI, MAVELIKKARA VILLAGE. BY ADVS. SRI.RINNY STEPHEN CHAMAPARAMBIL, SMT.ASHA ELIZABETH MATHEW. RESPONDENT(S): DEFENDANTS & 2ND PLAINTIFF: ---------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, ALAPPUZHA - 688 001. 2. ASSISTANT EXECUTIVE ENGINEER, MINOR IRRIGATION,SUB DIVISION, CHENGANNUR - 689 121. 3. ASSISTANT ENGINEER, MINOR IRRIGATION, (M.I) SECTION, MAVELIKKARA - 690 101. 4. DEVISON AUGUSTIN, S/O.LATE C.V.AUGUSTIN, KOTTAYIL VEETTIL, MANAKKADU MURI, MAVELIKKARA VILLAGE - 690 101. R1 TO R3 BY GOVERNMENT PLEADER SRI. T.K.SAJEEV THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2898/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER NO.D2.175/99 DTD. 31/10/2008 ISSUED BY THE 2ND RESPONDENT/2ND DEFENDANT IN FAVOUR OF THE PETITIONER'S HUSBAND. P2: COPY OF THE PLAN APPROVED BY THE 2ND RESPONDENT/2ND DEFENDANT. P3: COPY OF THE P LAINT FILED BY HE PETITIONER BEFORE THE VACATION COURT, ALAPPUZHA AS CMP.NO.318/2010. P4: COPY OF THE ORDER DTD. 22/11/2010 OF THE MUNSIFF'S COURT, MAVELIKKARA IN I.A.NO.625/2010 IN O.S.NO.132/2010. P5: COPY OF I.A.NO.1096/2011 IN O.S.NO.132/2010. P6: COPY OF THE ORDER DTD. 16/08/2011 OF THE MUNSIFF'S COURT, MAVELIKKARA IN I.A.NO.1096/2011 IN O.S.NO.132/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2898 of 2011 --------------------------------------- Dated this 02nd day of September, 2011 JUDGMENT Learned Government Pleader takes notice for respondents 1 to 3. Notice to respondent No.4/second plaintiff is dispensed with as requested by the learned counsel since 4th respondent is the husband of petitioner on whose behalf the suit is filed. 2. Petitioner/first plaintiff in O.S.No.132 of 2010 of the court of learned Munsiff, Mavelikkara challenges Ext.P6, order dated August 16, 2011 on I.A.No.1096 of 2011 in O.S.No.132 of 2010 refusing amendment of plaint to incorporate a prayer for fixation of eastern boundary of the suit property. Learned Munsiff observed that if the amendment is allowed, that would change the nature and character of the suit and that it is without issuing notice under Sec.80(1) of the Code of Civil Procedure (for short, "the Code”) that request for amendment is being made. The said order is under challenge. 3. The suit property, it is claimed belonged to the 4th respondent/second plaintiff and is being managed by petitioner/first plaintiff since the latter is abroad. Petitioner and second plaintiff wanted a decree for prohibitory injunction to O.P(C).No.2898 of 2011 -: 2 :- restrain respondents 1 to 3 from causing obstruction to construction of culvert across the channel in between the suit property and PWD road on the further east and constructing a protection wall as per Ext.P1, order. In the course of the suit, petitioner alleged that third respondent demolished the protection wall in violation of the order of temporary injunction claiming that construction was made encroaching into the Cannal belonging to respondents 1 to 3. Petitioner wanted amendment of the plaint to fix eastern boundary of the suit property claiming that there is no boundary between the suit property and the thodu on the immediate east (the PWD road, I am told is on the further east of the thodu). That prayer was resisted by respondents 1 to 3 and by Ext.P6, order learned Munsiff refused to allow it. Hence this original petition. 4. Learned counsel submitted that having regard to the nature and circumstance of the case request for amendment ought to have been allowed, there is no change in the nature and character of the suit, it is only an additional prayer for fixation of boundary and in the circumstance, finding of the learned Munsiff is not correct. Learned Government Pleader submits that allowing the amendment would amount to bypassing the mandatory requirement of Sec.80(1) of the Code. O.P(C).No.2898 of 2011 -: 3 :- 5. The suit is in respect of scheduled property which petitioner claimed, belongs to the 4th respondent/second plaintiff. It is true that in the plaint as originally filed, relief sought was in respect of the culvert and protection wall as above stated. Now, by amendment it is requested that eastern boundary of the suit property may be fixed. I am not inclined to think that amendment if made would alter the nature and character of the suit. 6. But the objection raised by the learned Government Pleader based on Sec.80(1) of the Code has to be accepted. For, under the said provision, except as provided under sub rule (2) no suit shall be instituted against the Government or against any public officer in respect of any act purporting to be done by such officer in his official capacity, until the notice in writing has been delivered to or left at the office of the Secretary to the Government or the Collector of the District. Though, learned counsel for petitioner contends that in the suit petitioner and fourth respondent prayed for an urgent relief and hence sub section (2) of Sec.80 would come to play, I am not inclined to accept that contention. For, amendment sought is fixation of eastern boundary of the suit property which does not involve any urgent relief. Therefore without complying with Sec.80(1) f the O.P(C).No.2898 of 2011 -: 4 :- Code question of petitioner requesting for amendment of the plaint as prayed for does not arise. 7. But, I am inclined to give an opportunity to the petitioner or the 4th respondent as the case may be to comply with requirement of Sec.80(1) of the Code. It is open to the petitioner and/or fourth respondent to issue notice under Sec.80 (1) of the Code and serve notice on the appropriate authority regarding the claim for fixation of boundary in the manner stated in Sec.80 of the code and on the expiration of the period mentioned in Sec.80(1) of the Code to seek amendment of plaint to incorporate a prayer for fixation of boundary. I however do not find reason to interfere with the impugned order for the reason I have stated above. This original petition is disposed of in the following lines; (i) Notwithstanding Ext.P6, order it is made clear that it is open to the petitioner and/or fourth respondent to issue notice to the appropriate authority under Sec.80(1) of the Code as to the relief sought to be included by amendment and seek amendment of the plaint after the expiry of the period provided under sec.80(1) of the Code. (ii) If any such request for amendment is made after complying with Sec.80(1) of the Code learned Munsiff shall consider the request and O.P(C).No.2898 of 2011 -: 5 :- pass appropriate orders having regard to the observations made in this order as well. (iii) Petitioner and/or fourth respondent shall issue such notice within two weeks from this day. (iv) To facilitate petitioner and/or fourth respondent filing appropriate application as above stated, it is directed that trial of the suit will stand in abeyance for a period of three months from this day. (THOMAS P JOSEPH, JUDGE) Sbna/-