IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 OP(C).No. 3684 of 2011(O) ------------------------- OS.415/2008 of MUNSIFF COURT, CHITTUR .................... PETITIONERS ---------------- 1. N.K.SUBRAMANIAN, S/O.N.S.KRISHNAIYYER, AGED 65 YEARS, RESIDING AT PAZHAYAGRAMAM, NENMARA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 2. K.P.DEVI, D/O.N.S.KRISHNAIYYER, AGED 57 YEARS, RESIDING AT PAZHAYAGRAMAM, NENMARA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 3. N.K.GOPALAKRISHNAN, S/O.N.S.KRISHNAIYYER, AGED 52 YEARS, RESIDING AT PAZHAYAGRAMAM, NENMARA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 4. N.K.JYOTHINARAYANAN, S/O.N.S.KRISHNAIYYER, AGED 5O YEARS, RESIDING AT PAZHAYAGRAMAM, NENMARA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 5. MANGALAMBAL, D/O.N.S.KRISHNAIYYER, AGED 45 YEARS, RESIDING AT PAZHAYAGRAMAM, NENMARA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 6. N.K.SREENIVASAN, S/O.N.S.KRISHNAIYYER, AGED 42 YEARS, RESIDING AT PAZHAYAGRAMAM, NENMARA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN vk OP(C).No. 3684 of 2011(O) --------------------------------- RESPONDENT(S): --------------------- 1. M.P.SUDHAKARAN, S/O.PARAMESWARAN NAIR, AGED 55 YEARS, RESIDING AT PAZHAYAGRAMAM, NENMARA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN-678508. 2. N.K.RUGMINI, D/O.N.S.KRISHNAIYYER, AGED 70 YEARS, RESIDING AT ASWATHY, KAILAS NAGAR, KALPATHI, PALAKKAD, PIN-678702. 3. N.K.RAMAN, S/O.N.S.KRISHNAIYYER, AGED 62 YEARS, C/O.NITCO ROAD WAYS (P) LTD., PLOT NO.13 CO-OPERATIVE INDUSTRIAL ESTATE, BALANAGR, GANDHI NAGAR, HYDERABAD, PIN-500380. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vk OP(C).No. 3684 of 2011(O) ----------------------------------- APPENDIX --------------- PETITIONER(S) EXHIBITS ------------------------------ EXT.P1 A TRUE COPY OF THE IA.2256/2011 IN OS.415/2008 OF THE COURT OF THE MUNSIFF OF CHITTUR. EXT.P2 A TRUE COPY OF THE ORDER DATED 25/10/2011 IN IA.2256/2011 IN OS.415/2008 OF THE COURT OF MUNSIFF OF CHITTUR. RESPONDENTS' EXHIBITS : NIL ------------------------------ / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3684 of 2011 -------------------------------------- Dated this the 16th day of November, 2011. JUDGMENT Plaintiffs in O.S.No.415 of 2008 of the court of learned Munsiff, Chittur challenge Ext.P2, order refusing to permit amendment midway during recording of evidence. Petitioners sued for recovery of possession of plaint B schedule and for mandatory injunction to remove the wall constructed by the respondents in plaint B schedule. Petitioners proceeded on the basis that they have title over plaint B schedule in the manner stated in the plaint at depth. Respondents resisted the claim on various grounds. In the meantime, the Advocate Commissioner inspected properties and submitted report and plan and with the issues framed, parties went into trial. Evidence of petitioners was over and the case was posted for evidence of respondents. 1st respondent and witness were examined as DWs 1 and 2 and the case was posted for further evidence. At that stage petitioners came with Ext.P1, application for amendment to incorporate plaint ‘C’ schedule and a contention that petitioners have perfect title over the said portion by way of adverse possession, that eves of the house of petitioners projected two feet from the eastern wall of their house and wall referred to in ‘C’ schedule (sought to be incorporated) was constructed by the 1st respondent within the said area of two feet. That application was resisted by the respondents. 2. Learned Munsiff rejected the application for two reasons – though OP(C)No.3684/2011 2 petitioners could take inconsistent pleas in their plaint, at the time of evidence they were required to confine to one plea; and, secondly the proviso to Rule 17 of Order VI of the Code of Civil Procedure (for short, “the Code”) was not satisfied. Ext.P2, order is under challenge. 3. Learned counsel citing various authorities argued that it is open to the petitioners to raise inconsistent pleas. Assuming that plea of title and adverse possession are only alternative pleas and hence could be raised, the application for amendment was filed only after the evidence of petitioners was closed and a part of evidence of respondents was recorded. In view of the proviso added to Rule 17 of Order VI of the Code in such situation unless it is shown that in spite of exercise of due diligence petitioners could not seek amendment. The court could not also exercise its power to grant permission to amend the pleadings. In the present case it is to be noted that in the affidavit in support of Ext.P1, application there is nothing stated why amendment was not sought before the trial commenced. In that view of the matter I do not find reason to interfere with Ext.P2, order. But I make it clear that if otherwise entitled, it will be open to the petitioners to challenge correctness of Ext.P2, order in an appeal that may arise from the judgment and decree in the case invoking Sec.105 of the Code. With the above observation, this Original Petition is closed. THOMAS P.JOSEPH, Judge. cks