IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 OP(C).No. 2832 of 2011(O) --------------------------------------- (I.A.NO.3144/2011 IN O.S.NO.540/05 OF ADDL.MUNSIFF COURT II, KOZHIKODE) ..... PETITIONER(S): ------------------------- 1. T.ASOKAN, S/O. KUNHIKANDAN, AGED 56 YEARS, THAYYIL HOUSE, CHELAVOOR AMSOM, DESOM, KOZHIKODE TALUK. 2. KATTAYATT PARAMBATH YAMUNA, D/O.KATTAYATT PARAMBATH ALI, AGED 36 YEARS, CHELAVOOR AMSOM,DESOM, KOZHIKODE TALUK. BY ADVS. SRI.K.M.FIROZ, SRI. SHAJNA. RESPONDENT(S): --------------------------- 1. K.NASAR, S/O ABU, AGED 39 YEARS, KANMAYIL HOUSE, CHELAVOOR AMSOM, DESOM, KOZHIKODE 673 303. 2. N.NISAR, S/O.UMMER, AGED 36 YEARS, IYYADATHU HOUSE, ELATHUR VILLAGE, PUTHOOR DESOM, P.O.ERANHIKKAL, KOZHIKODE 673 303. 3. K.K.RIYAS, S/O.MAMMU, AGED 33 YEARS, K.K.HOUSE (KIZHAKKE KOKKOLI), ELATHUR AMSOM, PUTHOOR DESOM, P.O.ERANHIKKAL, KOZHIKODE 673 303. R1 TO R3 BY ADV. SRI.SRINATH GIRISH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2832/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT I O.S.NO.540 OF 2005. P2: COPY OF THE WRITTEN STATEMENT IN O.S.NO.540 OF 2005 FILED BY THE DEFENDANT IN SUIT O.S.NO.540 OF 2005. P3: COPY OF THE PLAINT IN O.S.NO.551 OF 2005. P4: COPY OF THE AFFIDAVIT IN SUPPORT OF THE JOINT TRIAL APPLICATION. P5: COPY OF THE I.A.NO.727 OF 2011 IN O.S.NO.551 OF 2005. P6: COPY OF THE COMMISSIONER REPORT DTD. 8/06/2011. P6(A): COPY OF THE PLAN PREPARED BY THE SURVEYOR. P7: COPY OF THE ORDER DTD. 15/07/2011 IN I.A.NO.2447 OF 2011 IN O.S.NO.551 OF 2005. P8: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE AMENDMENT APPLICATION FILED BY THE PLAINTIFFS IN O.S.NO.551 OF 2005. P9: COPY OF THE APPLICATION FOR AMENDMENT (I.A.NO.3001 OF 2011). P10: COPY OF THE JOINT ADDITIONAL WRITTEN STATEMENT DTD. 5/08/2011 IN O.S.NO.551 OF 2005. P11: COPY OF THE AFFIDAVIT AND APPLICATION IN I.A.3144 OF 2011. P12: COPY OF THE COUNTER STATEMENT OF THE RESPONDENTS. P13: COPY OF THE ORDER DTD. 12/08/2011 IN I.A.NO.3144 OF 2011 IN O.S.NO.540 OF 2005 ON THE FILES OF ADDITIONAL MUNSIFF'S COURT II, KOZHIKODE. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2832 of 2011 --------------------------------------- Dated this 02nd day of September, 2011 JUDGMENT Plaintiffs in O.S.No.540 of 2005 of the Court of learned Additional Munsiff-II, Kozhikode are the petitioners before me challenging Ext.P13, order dated 12.08.2011 on I.A.No.3144 of 2011. Plaintiffs filed the suit for a decree for prohibitory injunction against respondents and their men trespassing into plaint B schedule which according to the petitioners is a public way having width of 5.40meters and length of 50meters. They claimed that they are gaining access to the plaint A schedule through the said way which respondents are attempting to obstruct. Respondents filed Ext.P2, written statement claiming absolute right over 10.72cents in R.S.No.92/1 as per document No.338/05 and contending that pathway referred to in the plaint has only a width of two meters starting from the public way on the south and leading to the plaint A schedule. In respect of the property (allegedly) belonging to the respondents, they filed O.S.No.551 of 2005 against petitioners and another. The Advocate Commissioner inspected the property and submitted report showing the length and width of the disputed way. It is O.P(C).No.2832 of 2011 -: 2 :- submitted by learned counsel for petitioners that respondents got their plaint amended to make the description of the way in tune with what the Advocate Commissioner has reported. That was done on 02.08.2011. In the meantime, evidence in the case started. Petitioners filed I.A.No.3144 of 2011 to amend plaint B schedule in O.S.No.540 of 2005. They wanted to describe the length and width of plaint B schedule way as reported by the Advocate Commissioner. That application was dismissed by the learned Munsiff as per Ext.P13, order. 2. Learned counsel for petitioners contends that respondents got their plaint amended only on 02.08.2011, that the application filed by the respondents for the said purpose came up for hearing on 02.08.2011 and was allowed the same day. But, when petitioners filed an application for amendment to their plaint, that request was disallowed by Ext.P13, order. Learned counsel for respondents submits that another application filed by the petitioners for amendment of plaint (not relating to the length and width of plaint B schedule way) was allowed by the learned Munsiff on 02.08.2011. It is also contended that petitioners have not satisfied the proviso to Rule 17 of Order VI of the Code of Civil Procedure (for short, "the Code”) to get the plaint amended after the evidence is recorded. O.P(C).No.2832 of 2011 -: 3 :- 3. No doubt, once recording of evidence has commenced, amendment can be allowed only on petitioners satisfying the proviso to Rule 17 of Order VI of the Code. But, this Court has held that in various circumstances in spite of due diligence, a party may omit to seek amendment of the plaint and it may happen that the deficiency in the plaint is brought to the notice of the party or the counsel as the case may be in the course of evidence. Here, amendment sought is to make the description of plaint B schedule in tune with the report of Advocate Commissioner (Ext.P6) where, the width is shown as lesser than what plaint B schedule says and its length is a bit more than what is stated in the plaint B schedule. 4. Learned counsel for petitioners submits that if amendment as requested for is allowed, petitioners will not ask for reopening the evidence at their instance or, ask for any remission or setting aside the report and plan already submitted. It is also submitted that petitioners are satisfied with the existing report and plan as also the evidence on record. That submission is recorded and that is sufficient to ally apprehension of respondents that the proceeding may prolong indefinitely. Having regard to the circumstances stated above I am inclined to allow the request of petitioners. O.P(C).No.2832 of 2011 -: 4 :- Resultantly this original petition is allowed and Ext.P13, order is set aside. Ext.P11, application (I.A.No.3144 of 2011 in O.S.No.540 of 2005) is allowed to the extent that petitioners are permitted to amend plaint B schedule to make it in tune with what the Advocate Commissioner has reported in Exts.P6 and P6 (a), report and sketch. It is made clear that on the strength of the said amendment, petitioners shall not ask for reopening of the evidence or for remission or setting aside Exts.P6 and P6(a), report and sketch, nor apply to call for any further report in the matter. If the respondents so choose, it is open to them to request learned Munsiff to give them opportunity to file additional written statement if any, to the amended plaint. It is made clear that the observation which learned Munsiff has given in Ext.P7, order (that the Court could take different view in the matter of setting aside the report and sketch at a later stage) will not extent to the length and width of the pathway referred to by the Advocate Commissioner in Exts.P6 and P6(a), report and sketch at the instance of petitioners. Petitioners shall carry out the amendment within two weeks from the date a copy of this judgment is received in the trial court. (THOMAS P JOSEPH, JUDGE) Sbna/-