IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 34212 of 2007(W) -------------------------- OS.232/2004 of MUNSIFF-MAGISTRATE COURT, DEVIKULAM .................... PETITIONER/DEFENDANT: ---------------------------- BAIJU, S/O.DAMODARAN, RESIDING AT PUTHENKUDIYIL HOUSE, ANCHAL KARA, KUNCHITHANNY VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT. BY ADV. MR.SUMAN CHAKRAVARTHY RESPONDENT/PLAINTIFF: --------------------------- M.M.MATHEW, S/O.MATHAI, RESIDING AT MACHUKATTTU HOUSE, ANCHAL KARA, KUNCHITHANNY VILLAGE, DEVIKULAM TALUK, IDUKKI DIST. ADV. MR.M.NARENDRA KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34212 of 2007(W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: ORIGINAL PLAINT IN O.S.NO.232/2004. EXT.P2: AMENDED PLAINT. EXT.P3: B DIARY OF PROCEEDINGS. EXT.P4: I.A.NO.896/2006. EXT.P5: OBJECTION TO I.A.NO.896/2006. EXT.P6: ORDER DATED 11.7.2007 IN W.P.(C).NO.20084/2007. EXT.P7: ORDER DATED 29.9.2007 IN I.A.NO.896/2006. RESPONDENT'S EXHIBITS: NIL ...... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.34212 Of 2007 ---------------------- Dated this the 28th day of September, 2010. J U D G M E N T Petitioner is the defendant in O.S.No.232 of 2004 on the file of the Munsiff Court, Devikulam. Ext.P7 order passed by the Munsiff Court, Devikulam dated 29.9.2007 in I.A.No.896 of 2006 is under challenge. Plaintiff and defendants respectively are the owners of plaint A and C schedule properties. They purchased the properties from one common ancestor. The dispute is with regard to the user of plaint B schedule road which admittedly passes through plaint A & C schedule properties. According to the plaint averments plaint B schedule road was laid down a decade back for motorable access to plaint A schedule property from the main road. It is pleaded that the road was in existence for the last 35 years and is used by the predecessors-in-interest of the plaintiff and the plaintiff as well as the defendants and that they have acquired right of easement by prescription. The plaintiff wanted to amend the pleadings by adding a claim that he has acquired the right of user of plaint B schedule road as a quasi W.P.(C).No.34212 Of 2007 ::2:: easement after purchase. In the original plaint it is pleaded that the plaint B schedule road was used by the plaintiff continuously, openly, peacefully and uninterruptedly, hostile to the defendants for the last 35 years and that he has acquired easement right by prescription. 2. Petitioner objected the amendment seriously stating that the amendment if carried out will change the nature and character of the suit. It is also contended by the petitioner that amendment introduced will set up a new case contrary to the earlier one set up in the plaint and that trial of the suit has already been started there is no bonafides in filing the petition for amendment. 3. The court below considered the contentions on both sides very elaborately. The learned Judge observed that both sides admitted in their pleadings that their respective schedule properties were purchased from a common transferor, that the original owner used the plaint B schedule motorable way to reach the plaint A schedule property from the main road, that the plaintiff claimed the declaration of easement right in continuation W.P.(C).No.34212 Of 2007 ::3:: of the right of plaintiffs and defendant's predecessor-in-interest since both sides admitted that the property in their respective possession was purchased from a common vendor. The court also appreciated the argument of the learned counsel for the plaintiff that in the said circumstances the amendment sought for will not change the nature and character of the suit. The court also did not accept the objection raised by the petitioner that amendment sought for was diametrically opposed and introducing a totally inconsistent plea. The court held that such contention has no legal force since both sides are well aware that the plaintiff and defendants purchased the respective schedule properties from a common transferor are the properties in their respective possession which enjoyed in continuation of the enjoyment of their predecessor-in-interest. The court also observed that the examination of the witnesses were not commenced so far though the court appointed a commissioner to record the cross-examination of the witnesses on 14.6.2006 and that in the light of the amendment petition, examination is not commenced so far. The court also relied on the decision reported W.P.(C).No.34212 Of 2007 ::4:: in Baldev Singh v. Manohar Singh [2006(3) KLT 953 (SC)] and observed that the court shall be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. The court further held that the delay caused in filing the amendment application and the delay caused in disposal of the suit and the inconvenience caused to the respondent/defendant can be compensated by adequate payment of cost. The court concluded that the amendment sought for is necessary for just and a proper decision of the issues involved and the court allowed the petition on payment of Rs.2,000/- to the respondent/defendant. 4. I have examined Ext.P7 order in detail. I find that the court allowed the amendment application after considering the legal principles on the subject and considered the objections raised one by one in detail. The court found that in the interest of justice the amendment sought for is to be allowed since the amendment is necessary for a just decision and for resolving the controversy raised in the suit. In the circumstances, this court is of the view that the court below applied its mind properly to the W.P.(C).No.34212 Of 2007 ::5:: question involved and passed Ext.P7 order. Ext.P7 order is not liable to be interfered with. 5. Learned counsel for the petitioner submitted that his client intends to prefer an application for appointing a commissioner for a local inspection to ascertain certain details which are necessary for resolving the dispute between the parties. If any such application is filed, the court shall consider the application and pass appropriate orders. The writ petition fails, and accordingly, dismissed. HARUN-UL-RASHID, Judge. bkn/-