IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 WP(C).No. 6589 of 2010(O) ------------------------- AGAINST THE ORDER IN IA.493/2010 IN OS.1021/1998 of PRINCIPAL MUNSIFF COURT, CHERTHALA .................... PETITIONER(S): --------------- 1. KARMILITHA, KARMIL HOUSE, ERAMALLOORE, CHERTHALA. 2. SOLLY MATHAN, DO. DO. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): --------------- K.D.CHANDRA BABU, S/O.DIVAKARAN, KARYAN VATTATHU SARASWATHY MANDIRAM, ERAMALLOORE P.O., CHERTHALA. ADV. SRI.M.JACOB MURICKAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.6589/2010 APPENDIX PETTIONERS' EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN OS 1021/98 OF MUNSIFF COURT, CHERTHALA EXT.P2 TRUE COPY OF WRITTEN STATEMENT IN OS 1021/98 OF -DO- EXT.P3 TRUE COPY OF JUDGMENT IN OS 1021/98 OF -DO- DATED 12/6/2002 EXT.P4 TRUE COPY OF JUDGMENT IN AS 25/2002 DATED31.3.2009 OF SUB COURT, CHERTHALA EXT.P5 A TRUE COPY OF IA 493/2010 IN OS 1021/98 DATED 10.2.2010 OF MUNSIFF COURT, CHERTHALA EXT.P6 TRUE COPY OF OBJECTION FILED IN IA NO.493/2010 DATED 17.2.2010 IN OS 1021/98 OF MUNSIFF COURT, CHERTHALA EXT.P7 TRUE COPY OF ORDER IN IA 493/2010 IN OS 1021/98 OF MUNSIFF COURT, CHERTHALA //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.6589 of 2010 -------------------------------------- Dated this the 15th day of June, 2010. JUDGMENT This Writ Petition is in challenge of Ext.P7, order dated 23.2.2010 on I.A.No.493 of 2010 in O.S.No.1021 of 1998 of the court of learned Principal Munsiff, Cherthala. That was an application filed by the respondent/defendant for amendment of written statement to incorporate a plea of adverse possession and limitation. Learned Principal Munsiff rejecting the objection raised by petitioners/plaintiffs allowed the application. It is contended by learned counsel for petitioners relying on the decision of the Supreme Court in Smt.Arundhati Misra v. Sr Ram Charitra Pandey (1994 (3) Civil LJ 465) that in the written statement originally filed by respondent he had made a claim of title over the disputed property and hence he is not entitled to seek amendment of written statement to incorporate a plea of adverse possession and limitation which is totally inconsistent with the plea of title already made. Hence the learned Principal Munsiff was not justified in allowing the amendment as prayed for. In response it is contended by learned counsel for respondent that amendment of the written statement has to be liberally granted unlike in the case of amendment of plaint and even inconsistent plea is permissible. Reliance is placed on the decisions of the Supreme Court in Usha Balashaheb Swami & Others WP(C) No.6589/2010 2 v. Kiran Appaso Swami & Others (2007 AIR SCW 2545) and Andhra Bank v. ABN Amro Bank N.V. & Others (2007 AIR SCW 4466). 2. Petitioners filed the suit for a declaration of title, possession and injunction based on title. Suit was originally dismissed on the finding that identity of suit property is not established. Petitioners took up the matter in appeal and the case was remanded to the trial court for further evidence. After remand the Advocate Commissioner inspected property and submitted a report. Then came the application from respondent for amendment of written statement to incorporate plea of adverse possession and limitation. 3. It is settled position of law so far as amendment of written statement is concerned, that it stands on a different pedestal from amendment of plaint and that the request must be liberally considered. Respondent/defendant must be permitted to raise all contentions necessary for decision of the controversy if necessary by amendment of the written statement. Learned counsel for respondent relying on the decisions of the Supreme Court referred supra has contended that inconsistent plea also can be brought in by amendment of the written statement. Now the question is whether plea of title originally claimed by the respondent is inconsistent with the plea of adverse possession and limitation. The Supreme Court in L.N.Aswathama & another v. P.Prakash (2009 SAR (Civil) 684) has held that when a WP(C) No.6589/2010 3 person is in possession asserting title even if he fails to establish his title, his possession would still be adverse to the true owner. The two pleas are not inconsistent but are only alternative. That being the position, contention that a plea of adverse possession and limitation cannot be incorporated by amendment when the respondent has already pleaded title over disputed property cannot be accepted. 4. So far as delay is concerned, mere delay is not sufficient to defeat the application. That fact was taken into account by the learned Principal Munsiff and cost has been ordered in favour of petitioners. Trial court has exercised the discretion in favour of respondent allowing the application notwithstanding the delay imposing cost on the respondent. I do not find reason to interfere with that as well. Writ Petition fails. It is accordingly dismissed. THOMAS P.JOSEPH, Judge. cks