IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 WP(C).No. 4123 of 2008(N) ------------------------- OS.639/2004 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONER: ------------ P.NARAYANA PANICKER@KRISHNAN KUTTY, AMBATT HOUSE,RESIDING AT BHAGI BHAVAN, KUTHIYATHODU VILLAGE,THURAVOOR P.O,CHERTHALA. BY ADV. SRI.E.K.NANDAKUMAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR SRI.JAYASANKAR A.K. RESPONDENTS: ------------- 1. DAMODHARA PANICKER @ MANI AGED 65, AMBATT HOUSE,RESIDING AT BHAGI BHAVAN, KUTHIYATHODU VILLAGE,CHERTHALA. 2. K.J.SUSHEELA,W/O NARAYANA PANICKER, AMBATT HOUSE,RESIDING AT BHAGIBAVAN, KUTHIYATHODU VILLAGE,THURAVOOR P.O,CHERTHALA. 3. KAMALADEVI,AGED 45 YEARS, W/O PARAMESWARA PANICKER, AMBATT,BABY NILYAM,KUTHIYATHODU VILLAGE, THURAVOOR P.O,CHERTHALA. 4. LAKSHMI, AGED 16 YEARS,MINOR, D/O PARAMESWARA PANICKER, REPRESENTED BY HER MOTHER & NATURAL GUARDIAN, 2ND RESPONDENT, AMBATTU, BABY NILAYAM, KUTHIYATHODU VILLLAGE,THURAVOOR P.O,CHERTHALA. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.4123/2008 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE PLAINT FILED BY THE 1ST RESPONDENT BEFORE THE CHERTHALA MUNSIFF COURT DT.4.10.2004 IN O.S.NO.639/2004 EXT.P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE CHERTHALA MUNSIFF COURT DT.8.12.2004 IN O.S.NO.639/2004 EXT.P3: COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE CHERTHALA MUNSIFF COURT DT.10.12.2007 IN O.S.NO.639/2004 EXT.P4: COPY OF THE COUNTER CLAIM FILED BY THE PETITIONER BEFORE THE CHERTHALA MUNSIFF COURT DT.18.12.2004 IN O.S.NO.639/2004 EXT.P5(a): COPY OF THE COMMISSION REPORT FILED BY ADVOCATE HARIKRISHNAN BEFORE THE CHERTHALA MUNSIFF COURT DT.17.11.2004 IN O.S.NO.639/2004 EXT.P5(b): COPY OF THE SKETCH FILED BY ADVOCATE HARIKRISHNAN BEFORE THE CHERTHALA MUNSIFF COURT DT. 17.11.2004 IN O.S.NO.639/2004 EXT.P6: COPY OF THE PARTITION DEED NO.552/1984 OF KUTHIYATHODU SRO DT.6.3.1984. EXT.P7: COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE CHERTHALA MUNSIFF COURT DT.10.12.2007 IN I.A.NO.3667/2007 IN O.S.NO.639/2004 EXT.P8: COPY OF THE ORDER DT.17.1.2008 FROM THE CHERTHALA MUNSIFF COURT IN I.A.NO.3667/2007 IN O.S.NO.639/2004. //TRUE COPY PA TO JUDGE M.N.KRISHNAN, J. --------------------------- W.P.(C) No.4123 OF 2008 -------------------------- Dated this the 15th day of February, 2008 J U D G M E N T ~~~~~~~~~~~ This writ petition is preferred against the order of the Munsiff's Court, Cherthala in I.A.No.3667/2007 in O.S.No.637/2004 whereby the learned Munsiff has declined to allow the prayer for amendment of the counter claim. The main pleading which is sought to be incorporated is the description of the way contending for the possession that it is a motorable way. It is also averred in the statement that it has been noted by the Commissioner. It is a settled principle that a counter claim is also a plaint. While considering the counter claim the court has to pin pointedly state whether there is any way and if so what is the way and whether the person claiming the way is entitled to that way. It is also an equally settled principle at the stage of amendment the court is not expected to go into the merits or demerits of the case. I think for a proper decision of the case, the amendment is necessary and any point which is to be controverted can be done by the plaintiff in the suit by way of filing an additional written statement in the counter claim. W.P.(C) No.4123/2008 2 Therefore, the order under challenge is set aside and the application for amendment of the counter claim is allowed and after carrying out the amendment in the counter claim by the defendant, the plaintiff in the suit is given liberty to file additional written statement in the counter claim and the court shall try to dispose of the matter as directed in my earlier judgment in O.P.No.29443/2007. The writ petition is disposed of as above. (M.N.KRISHNAN, JUDGE) ps