IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 WP(C).No. 30444 of 2007(Y) -------------------------------------- OS.377/2006 of MUNSIFF COURT, VAIKOM .................... PETITIONER: ------------------ P.V.GOPINATHAN, AGED 66, S/O VELAYUDHAN, PUTHENPARAMBIL CHIRAYIL, MARIYAPPALLY P.O., NATTAKAM VILLAGE, KOTTAYAM. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS: ---------------------- 1. LAKSHMY, W/O LATE DAMODHARAN, THOTTATHIL, KULASEKHARAMANGALAM KARA AND VILLAGE. 2. MANOHARAN, S/O DAMODHARAN, THOTTATHIL, KULASEKHARAMANGALAM KARA AND VILLAGE, VAIKOM TALUK. 3. MOHANAN, S/O DAMODHARAN, THOTTATHIL, KULASEKHARAMANGALAM KARA AND VILLAGE, VAIKOM TALUK. BY ADV. SRI.A.K.ALEX SRI.K.P.SURESH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30444/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE PLAINT IN OS. NO.377/2006 ON THE FILE OF THE MUNSIFF COURT, VAIKOM DT. 25.10.2006. EXT.P2:- COPY OF THE WRITTEN STATEMENT IN EXT.P1 SUIT DT. 1.12.2006. EXT.P3:- COPY OF THE APPLICATION IA. 1786/07 IN OS./ NO.377/2006 DT. 25.9.2007. EXT.P4:- COPY OF THE PASSED IN IA. N O.1786/07 IN OS. NO.377/2006 DT. 29.9.2007 ON THE FILE OF THE MUNSIFF COURT, VAIKOM. /TRUE COPY/ P.A. TO JUDGE tss M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 30444 OF 2007 --------------------- Dated this the 20th day of February, 2008 JUDGMENT This writ petition is preferred against the order of the Munsiff, Vaikom, in IA 1786/07 in OS 377/06. It is an application for amendment of the plaint. It is averred in the application for amendment that just before the inspection of the property by the Commissioner, the defendants tried to trespass upon the plaint scheduled property and forcibly removed the boundary stones. Therefore the plaintiff wants to incorporate a prayer to fix the boundary on all the sides of the plaint scheduled property demarcating with the defendants property. This was strongly objected to by the defendants in the suit contending that it lacks total bona fide which goes against the averment in the plaint. It changes the character of the suit and therefore the amendment cannot be allowed. The court below held that the matter which was included in the list was adjourned and just a week prior to the commencement of the trial, an application has been filed and therefore it cannot be entertained. The court also opined “more over if there was well defined boundary for the property and it was destroyed by the defendants, then the remedy for the petitioner is to reinstall the boundary and not to ask for a relief of fixation of boundary”. Whereas this boundary will decide the fate of the litigation and also the relief for injunction. WPC NO 30444/07 2 2. Learned counsel appearing for the respondent had brought to my notice the two decisions referred to in Karthiyani v. Ramanathan [2005 (2) KLT 115] and in Mooppan Complex Merchants Association v. Raveendran [2004 (3) KLT 682]. In Karthiyani v. Ramanathan [2005 (2) KLT 115] this court on the facts and circumstances of that case held that “it is not desirable to invoke jurisdiction under Article 227 of he Constitution of India against the rejection of a plaint especially when the amended CPC 115 takes away the right of the parties. Reference to para 7 of the said judgment would reveal the reasons for not entertaining the application for amendment. The court held that it changes the basic character of the suit. In Mooppan Complex Merchants Association v. Raveendran [2004 (3) KLT 682] also this court refused to interfere under Article 227 of the Constitution of India when an application for amendment was rejected. The court held that such an application for amendment at the fag end of the trial cannot be entertained. Later in Bhaskaran Nair v. Chandramathyyamma [2006 (1) KLT 533], the Judge while dealing with the matter explained the decisions referred to by the learned counsel for the respondent and held that “the court should be extremely liberal in granting a prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side. The object of Order VI Rule 17 CPC is to avoid multiplicity of suits and the court has to keep this WPC NO 30444/07 3 principle in mind while considering the application for amendment of the pleadings. Amendment cannot be claimed as a matter of right under all circumstances. At the same time courts while deciding such prayers should not adopt a hyper-technical approach. The court also opined applications moved at a appropriate stage and not unduly delayed should not normally be rejected. The Apex court in the decision reported in Baldev Singh v. Manohar Singh [2006 (3) KLT 953] held that the courts should be extremely liberal in granting the prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side. The court also referred to the amendment proceedings of the CPC and held as follows. By the Code of Civil Procedure (Amendment) Act 2002 a proviso has been added to Order 6 rule 17 which restricts the courts from permitting an amendment to be allowed in the pleadings either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. Now bearing these principles in mind the court has to consider whether application of amendment has to be allowed or not. 3. The suit is filed for an injunction. Along with the suit an application for issuance of a commission is filed. It is averred in the WPC NO 30444/07 4 amendment application that just prior to the inspection by the Commissioner the boundary stones had been removed and therefore the plaintiff prays for a relief for fixation of boundary. It is true that the suit as originally filed is one for an injunction with respect to the plaint scheduled property. When a doubt is caused in the mind of court with respect to the correctness of the boundary of the property demarcating the plaintiffs property from the defendants property in order to have the proper adjudication of the matter, it is always desirable to have the boundaries fixed so that the parties need not file litigations after litigations to get a proper determination of their right with respect to the properties. Here what is prayed for is only an amendment whereby the plaintiff request the court to demarcate his property from the defendants’ property by fixing a proper boundary in accordance with his document. By any stretch of imagination it will not cause any prejudice to the other side. If it is done, certainly it will avoid multiplicity of proceedings. Just because it was filed on the eve of the trial, one shall not technically reject the petition on the ground of application of proviso to Order VI Rule 17. 4. Therefore, in order to have an effective and proper adjudication of the dispute between the parties and in the interest of justice I feel that it is necessary to have the boundary fixed. Therefore I find the court below fell into error in rejecting the application for amendment. Therefore I set aside the order of the court below in the light of the WPC NO 30444/07 5 enunciated principles laid down by various decisions referred to above and allow the application for amendment. Needless to say that since the application for amendment is allowed, the defendants are at liberty to file additional written statement refuting the allegations against them. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 30444/07 6 WPC NO 30444/07 7