IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 WP(C).No. 31120 of 2008(D) -------------------------- OS.4/2007 of MUNSIFF COURT, KOLENCHERRRY .................... PETITIONER(S): --------------- 1. BABY GEETH, W/O. LATE NARAYANANKUTTY, GEETHABHAVAN, THODUPUZHA KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. 2. SUNITHA, D/O. DO. IN DO....DO... 3. ANITHA , D/O. DO...& W/O. RENJITH K NAIR PERUMANA, CHALIKKAVATTOM P.O., VYTTILA, ERNAKULAM, REPRESENTED BY AUTHORIZATION IST PETITIONER. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): --------------- 1. PRAVEEN, S/O. PREMAN, CHERAKULANGARA HOUSE, PARIYARAM KARA, AIKKARANADU SOUTH VILLAGE 2. PREMAN, S/O. RAMAKRISHNAN, IN DO...DO.. 3. RAJESWARY, D/O. PARVATHI AMMA, VADASSERI, RESIDING AT ILICKAL HOUSE, VAZHATHANDU, GURUNAGAR, VENGALLUR, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK. ADV. SRI.MATHEWS K.PHILIP FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 31120/08) PETITIONERS' EXTS.: EXT.P1: TRUE COPY OF THE COMMISSION REPORT AND PLAN IN O.S.4/07 OF THE MUNSIFF COURT, KOLENCHERRY. EXT.P2: TRUE COPY OF THE APPLICATION I.A.NO.288/08 IN O.S.NO.4/07. EXT.P3: TRUE COPY OF THE APPLICATION I.A.NO.289/08 IN O.S.NO.4/07. EXT.P4: TRUE COPY OF ORDER IN I.A.288/08 IN O.S.NO.4/07. RESPONDENTS EXTS.: EXT.R1(a): TRUE COPY OF THE PETITION FOR REMOVING THE CASE FROM LIST ON 3.9.2008. EXT.R1(b): TRUE COPY OF THE RESTORATION PETITION FILED BY THE PETITIONERS IN O.S.NO.4/07 ON THE FILE OF THE MUNSIFF COURT, KOLENCHERRY. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 31120 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 25th November, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: 1. To call for the records relating to Ext.P4 order and set aside the same. 2. To allow I.A.No.288 of 2008 in O.S.No.4 of 2007 on the file of the Munsiff's Court of Kolencherry as prayed for therein. 2. Petitioners are the plaintiffs in O.S.No.4 of 2007 on the file of the Munsiff Court, Kolencherry. Suit is for declaration of title and for fixation of boundary. Suit claim was resisted by the respondents, the defendants in the suit. An Advocate Commissioner conducted a local inspection, measured out the properties with the assistance of a surveyor and prepared a report and plan. The respondents/defendants raised objection to the report and plan and moved an application for setting it aside, to which petitioners/plaintiffs filed objections. The learned Munsiff initially posted the application of the defendants for enquiry, and later posted it for consideration with the suit. Petitioners/plaintiffs, thereupon, moved an application for amending the plaint seeking an additional W.P.C.No.31120/08 - 2 - relief of recovery of possession in respect of a portion of their property which had been identified by the commissioner as having trespassed upon by the defendants. Defendants filed objections to that application. The learned Munsiff, after hearing both sides, dismissed the application for amendment vide P4 order mainly for the reason it was highly belated. Propriety and correctness of P4 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 counsel on both sides. It is noticed from the submissions made that the suit had been included in the list for trial at the time when the application for amendment was moved by the plaintiffs. Another application too had been moved by the plaintiffs for removal of the case from the list. Both the applications had been dismissed by the court below, and the suit was also dismissed for default. However, later, it is submitted, the suit has been restored to file allowing the application moved by the plaintiffs. Taking note of the limited nature of the amendment sought for, canvassed with reference to the commission report and plan prepared by the advocate commissioner, I find, to give a quietus to the whole W.P.C.No.31120/08 - 3 - controversy and for a fair and proper adjudication of the issues involved in the suit, the proposed amendment sought for requires consideration. Learned counsel for the respondents/defendants has strongly opposed the amendment application contending that no interference with P4 order passed by the learned Munsiff is called for as the application moved by the plaintiffs was highly belated. True, the application could have been filed by the plaintiffs immediately after the commissioner filed his report and plan. To the report and plan, the defendants had filed objections and moved an application for setting aside that report and it was posted for enquiry cannot be taken as a sufficient ground to explain the delay in filing the application for amendment. Whatever that be, the delay in moving the application cannot be given decisive effect in depriving the plaintiffs an opportunity to amend the plaint to seek an additional relief for recovery of possession. The injury likely to be caused to the defendants in allowing such an amendment application belatedly can be compensated by awarding cost. So much so, the application moved by the plaintiffs for amendment of the plaint shall stand allowed in modification of P4 order subject to the condition of the plaintiffs paying a sum of Rs.1000/- as cost to the respondents within W.P.C.No.31120/08 - 4 - two weeks from the date of receipt/production of a copy of this judgment before the court below. Cost ordered shall be paid to the counsel appearing for the respondent in the court below, and a memo evidencing such payment also to be filed. In case cost is paid within the time stipulated, the court below shall permit the plaintiffs to carry out the amendment in the plaint and then provide an opportunity to the defendants to file additional written statement to answer to the new matters brought in by the amended plaint. Post for compliance on 15th December, 2009. Writ Petition is disposed as indicated above. Issue copy of the judgment to the counsel on both sides on usual terms and send a copy to the court concerned forthwith. srd S.S. SATHEESACHANDRAN, JUDGE