IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 WP(C).No. 24200 of 2010(O) -------------------------- AGAINST THE ORDER DATED 07/06/2010 IN IA.297/2010 IN OS.21/2010 of SUB COURT,THODUPUZHA .................... PETITIONERS/RESPONDENTS/DEFENDANTS: ------------------------------------- 1. PAILY, S/O.MATHAI, AGED 70 YEARS, EDASSERIL HOUSE, NEDUMATTOM KARA, KODIKULAM VILLAGE, THODUPUZHA. 2. SOJAN, S/O.PAILY, AGED 44 YEARS, EDASSERIL HOUSE, NEDUMATTOM KARA, KODIKULAM VILLAGE, THODUPUZHA. BY ADV. SRI.H.SUNIL SRI.V.K.PEERMOHAMED KHAN SRI.H.HAMZA ROWTHER RESPONDENTS/PETITIONERS/PLAINTIFFS ------------------------------------- 1. DEVASSIA, S/O.MATHAI, AGED 77 YEARS, EDASSERIL HOUSE (KANAMKOMBIL), BYPASS ROAD, VANNAPPURAM.P.O., THODUPUZHA. 2. BROTHER MATHEW LUKE, S/O.MATHAI, AGED 75 YEARS, SOCIETY OF ST.PAULS T.PS, 23RD ROAD, BANDRA WEST, MUMBAI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.24200 of 2010 --------------------------------------- Dated this 03rd day of August, 2010 JUDGMENT Petitioners who are defendants in O.S.No.21 of 2010 of the court of learned Sub Judge, Thodupuzha challenge Ext.P5, order allowing Ext.P3, application for amendment of plaint. Respondent initially filed the suit in the court of learned Munsiff, Thodupuzha as O.S.No.152 of 2008 seeking a decree for prohibitory injunction restraining petitioners from trespassing into the suit property or committing waste therein. Petitioners filed Ext.P2, written statement denying claim of respondent and claiming to be in possession of the suit property. Later the suit was withdrawn and transferred to the court of learned Sub Judge, Thodupuzha where it was numbered as O.S.No.21 of 2010. While so, respondent filed Ext.P3, application for amendment of plaint to incorporate alternative prayer for recovery of possession. Petitioners preferred Ext.P4, objection contending that amendment if permitted would change nature and character of the suit and that even in Ext.P2, written statement they had claimed that respondent has no possession of the suit property. Learned counsel contends that there are no sufficient averments W.P.C.No.24200 of 2010 : 2 : even in the amended plaint which justifies a declaration of title and recovery of possession. 2. It is to be noted that vide Ext.P3, application what respondent sought is amendment to incorporate an alternative prayer of declaration of title and recovery of possession. Respondent maintains that he continues to be in possession of the suit property. The mere fact that an alternative prayer is sought to be incorporated by amendment will not or could not change character and nature of the suit. Amendment is necessary for adjudication of the dispute involved and to avoid multiplicity of suits. Learned Sub Judge has rightly allowed Ext.P3, application. I do not find reason to interfere with Ext.P5, order. But, if petitioners are not given opportunity to file additional written statement in answer to the amended plaint, they should be given opportunity to do so. Resultantly this writ petition is dismissed observing that if petitioners are not given opportunity to file additional written statement in answer to the plaint learned Sub Judge shall give such opportunity to them. (THOMAS P JOSEPH, JUDGE) Sbna/-