IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 WP(C).No. 18131 of 2009(O) --------------------------------------- OS.NO.413/2002 OF MUNSIFF'S COURT, KAYAMKULAM. .................... PETITIONER: ------------------- RADHAKRISHNA PILLAI, S/O.RAGHAVAN PILLAI, KANJIRATHUM MOOTTIL VADAKKETHIL PUTHIYAVILA MURI, KANDALLOOR VILLAGE. BY ADV. MR.S.MOHANAN. RESPONDENT: --------------------- 1. THANKAMMA, KANJIRATHUM MOOTTIL, PUTHIYAVILA MURI, KANDALLOOR VILLAGE. 2. KAMALAMMA, KANJIRATHUM MOOTTIL, PUTHIYAVILA MURI, KANDALLOOR VILLAGE. 3. K.N.APPUKUTTAN, VADAKKE VILAYATHU, PUTHIYAVILA MURI, KANDALLOOR VILLAGE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.18131 of 2009 - O --------------------------------- Dated this the 30th day of June, 2009 J U D G M E N T This writ petition is filed seeking the following relief: “To call for the records leading to Ext.P9 and the connected records in O.S.No.413/2002 on the file of the Munsiff court, Kayamkulam and quash Ext.P9 and allow Ext.P7 amendment application”. 2. Petitioner as plaintiff had instituted two suits O.S.Nos.488/96 and 413/02 before the Munsiff Court, Kayamkulam. The former suit was one for declaration of right of easement over a pathway and the latter for a decree for injunction, both prohibitory and mandatory. First defendant in both suits are common and other defendants in the suit are different. Both suits were ordered to be tried jointly as common questions arose for determination by the court. In O.S.No.413/02, plaintiff moved two applications. One for amendment of the plaint and the other for removing defendants 1 and 2 from the party array of defendants. The applications were opposed by the first and second defendants in the suit by W.P.(C).No.18131 of 2009 - O 2 filing written objections. The learned Munsiff after hearing both sides, dismissed the applications. Ext.P9 is the copy of that order. Impeaching the correctness and propriety of Ext.P9 order, petitioner/plaintiff has filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. 4. It is seen from Ext.P9 order that when the two cases came up in the special list for trial, petitioner moved an application for withdrawal of O.S.No.488/96 and that was allowed by dismissing that suit as withdrawn and directing continuation of the trial of other case O.S.No.413/02. At this stage, the order shows, the plaintiff moved two applications, one fore removing the defendants 1 and 2 from the party array of defendants and the other for amendment of the plaint. All along, plaintiff was having a case that he has a right over a pathway having a width of 1.5 meters. In the application moved for removal of defendants 1 and 2 as well as in the amendment application, plaintiff has advanced a case that defendants 1 and 3 have left W.P.(C).No.18131 of 2009 - O 3 out two feet width of pathway and he is satisfied with that pathway and so much so, relief in respect of 1.5 meters is not pressed. In the light of the pathway of two feet provided by the third defendant, who is stated to be an assignee from the second defendant in O.S.No.488/96, it is the case of the petitioner that he does not want to have any relief from the defendants 1 and 2 and so much so, they have to be removed from the party array. The case so advanced by the plaintiff was objected to by the defendants 1 and 2 contending that the proposed amendment would change the character of the suit and, further, that the amendment is intended to defeat the decree passed in another suit O.S.No.23/96 where the very same relief raised by the plaintiff had already been negatived. Learned Munsiff after examining the merit of the petitions moved by the plaintiff in the light of the objections raised by the defendants, after hearing the counsel on both sides, found merit in the objection raised by defendants 1 and 2 that the proposed amendment will change the character of the suit and, further, the petition moved for removing defendants 1 and 2 from the party array is not W.P.(C).No.18131 of 2009 - O 4 bonafide. In that view of the matter both petitions were dismissed. Though learned counsel for the petitioner vehemently urged before me that the plaintiff is having the right to abandon the claim/relief sought against one or more defendants in the suit, at any stage, and seek for amendment to resolve the actual controversy arising for adjudication in the suit, after going through Ext.P9 order, with reference to Ext.P7 amendment application, I find there is no impropriety or illegality in Ext.P9 order passed by the learned Munsiff. Petitioner has not produced a copy of the application moved by him for removing the defendants 1 and 2 from the array of the defendants. But, after perusing Ext.P9 order, I find in the nature of the disputes involved in the suit, learned Munsiff was justified in coming to the conclusion that both the applications presented by the petitioner/plaintiff are not entertainable and liable to be dismissed. However, I make it clear that it is open to the petitioner to specifically file a statement before the court that he is abandoning the relief/claim against defendants 1 and 2 if he does not intend to proceed against them, but as regard the W.P.(C).No.18131 of 2009 - O 5 amendment which was sought for and negatived by the court below, the plaintiff cannot have any indulgence from this Court. If so advised, the plaintiff can seek withdrawal of the suit, if he is of the view that in view of the nonallowing of the amendment, the suit is bound to fail, on account of some formal defect in the plaint presented before the court. If any such application is moved, the court below shall consider such application in accordance with law. Subject to the above observation, this writ petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-