IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WP(C).No. 4928 of 2009(J) ------------------------------------ AS.74/1996 of DISTRICT COURT, PALAKKAD OS.68/1994 of MUNSIFF COURT, CHITTUR .................... PETITIONER(S): ---------------------- MAYILSWAMY, S/O.SUPPAN OZHALAPATHYOORIL, OZHALAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD. BY ADV. MR.P.R.VENKETESH RESPONDENT(S): ------------------------ CHINNAKANNAN, S/O.KARUPPASWAMY, OZHALAPATHYOORIL, OZHALAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD. BY ADV. MR.SAJAN VARGHEESE K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 4928/2009-J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMON JUDGMENT IN OS.175/1993, 400/1993 AND OS.68/1994 DATED 08/01/1996 PASSED BY THE MUNSIFF COURT, CHITTUR. EXT.P2: COPY OF THE JUDGMENT IN AS.74/1996 DATED 29/10/2002 PASSED BY THE DISTRICT COURT, PALAKKAD. EXT.P3: COPY OF THE EXECUTION PETITION NO.33/2004 IN OS.68/1994 FILED BEFORE THE MUNSIFF COURT, CHITTUR. EXT.P4: COPY OF THE REPORT AND PLAN DATED 10/04/1995 SUBMITTED BY THE COMMISSIONER IN OS. NO.400/1993. EXT.P5: COPY OF THE APPLICATION I.A. NO.2076 OF 2004. EXT.P6: COPY OF THE APPLICATION I.A. NO.2077/2004. EXT.P7: COPY OF THE EA. NO.567/2004. EXT.P8: COPY OF THE COUNTER STATEMENT FILED IN IA. NO.2077/2004 FILED BY THE PETITIONER. EXT.P9: COPY OF THE ORDER DATED 10/02/2005 IN I.A. NOS.2076 & 2077 OF 2004. EXT.P10: COPY OF THE ORDER DATED 10/02/2005 IN EA NO.567/2004. EXT.P11: COPO JUDGMENT DATED 17/07/2007 IN WP(C) NO. 29948 OF 2005 PASSED BY THIS HONOURABLE COURT. EXT.P12: COPY OF THE IA.1813 OF 2007 B Y THE RESPONDENT BEFORE THE DISTRICT COURT, PALAKKAD. EXT.P13: COPY OF THE IA.1814 OF 2007 BY THE RESPONDENT BEFORE THE DISTRICT COURT, PALAKKAD. EXT.P14: COPY OF THE IA.1812/2007 FILED BY THE RESPONDENT BEFORE THE DISTRICT COURT, PALAKKAD. EXT.P15: COPY OF THE COUNTER STATEMENT IN IA.1813/2007 OF THE PETITIONER. EXT.P16: COPY OF THE COUNTER STATEMENT IN I.A.1814/2007 OF THE PETITIONER. EXT.P17: COPY OF THE COUNTER STATEMENT IN I.A.1812/2007 OF THE PETITIONER. EXT.P18: COPY OF THE COMMON ORDER DATED 01/03/2008 IN EXTS P15 TO P17 OF THE DISTRICT COURT, PALAKKAD. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.4928 OF 2009 -------------------------- Dated this the 11th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P18. ii) Issue such other or further orders as this Hon'ble Court may deem just and fit in the circumstances of the case. 2. Petitioner is the defendant in O.S No. 68 of 1994 on the file of the Munsiff Court, Chittur. Suit was one for recovery of possession. W.P.(C).No.4928 OF 2009 2 Suit was dismissed, against which an appeal was preferred by the plaintiffs reversing the dismissal of the suit. A decree in favour of the plaintiffs was granted by the appellate court. Later pursuant to passing of that decree the plaintiff moved an application for correcting the decree with respect to one of the boundaries of the plaint property stating that a mistake had crept in showing the western boundary of the suit property. That application was allowed by the trial court against which the petitioner / defendant filed a writ petition before this court. That writ petition was disposed by Ext.P11 judgment setting aside the order of the trial court, and allowing the plaintiff to approach the appellate court within one month to seek for amendment of the plaint. Pursuant thereto the respondent / plaintiff approached the appellate court but after the time limit fixed by this court. The application was W.P.(C).No.4928 OF 2009 3 objected to by the petitioner / defendant mainly contending that it was barred by limitation since it had been filed beyond the time granted by this court in Ext.P11 judgment. The learned appellate Judge after considering the merit of the application moved by the respondent / plaintiff with reference to the objections filed by the petitioner / defendant allowed the amendment sought for under Ext.P18 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. The learned counsel for the petitioner submitted before me that the application moved by the respondent was challenged on grounds other than that it was barred by time. But such grounds were W.P.(C).No.4928 OF 2009 4 not appreciated and not taken into consideration by the court below while passing Ext.P8 order. Further submission of the counsel is that the amendment sought for would not fall within the ambit of Section 152 of the Code of Civil Procedure. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P18 order, I find the challenges now raised to impeach the correctness of that order cannot be sustained for more than one reason. Previously when the application was allowed by the trial court, and it was challenged by the petitioner before this court, petitioner had no case that the application was not entertainable under Section 152 of the Code of Civil Procedure. Such a case was not pressed into service before this court earlier. Ext.P11 judgment by this court shows that the only point canvassed with that an application is entertainable W.P.(C).No.4928 OF 2009 5 only before the appellate court because there was a merger of the decree passed by the trial court with that of the appellate court. The appellate court after considering the merit of the application and hearing the counsel on both sides found that obviously a mistake had occurred in describing the western boundary of the suit property. Ext.P18 order also shows that the only challenge pressed into service before that court was the delay in filing the petition, beyond the time fixed by this court. That also was taken into consideration by the appellate court while allowing that application. I do not find any merit in the writ petition, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE W.P.(C).No.4928 OF 2009 6 vdv