IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 OP(C).No. 3972 of 2011(O) ------------------------------------ OS.334/2009 of MUNSIFF COURT, PUNALUR ................... PETITIONER (S): ------------------------ RAVEENDRAN, AGED 50 YEARS, S/O.RAGHAVAN, ANANTHA BHAVAN, EDAYAM, PULLANKODE MURI, ARACKAL VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADV. SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER RESPONDENT(S): ------------------------ 1. THOMAS JOHN, S/O.THOMAS, MAMMOTTIL BUNGLOW, EDAYAM, ARACKAL VILLAGE, PATHANAPURAM TALUK, EDAYAM P.O., KOLLAM DISTRICT 691001. 2. C.K.MARYKUTTY, W/O.GEORGE, AGED 60 YEARS, MAMMOTTIL HOUSE, PULLANKODE, ARACKAL VILLAGE, PATHANAPURAM TALUK, EDAYAM P.O., KOLLAM DISTRICT 691001. 3. MAMMAN THOMAS, S/O. THOMAS, MAMMOTTIL HOUSE, PULLANKODE, ARACKAL VILLAGE, PATHANAPURAM TALUK, EDAYAM P.O., KOLLAM DISTRICT 691001. 4. JACOB THOMAS, S/O. THOMAS, MAMMOTTIL HOUSE, PULLANKODE, ARACKAL VILLAGE, PATHANAPURAM TALUK, EDAYAM P.O., KOLLAM DISTRICT 691001. Contd........2 -:2:- OPC NO. 3972/2011 5. JACOB GEORGE, S/O. GEORGE, MAMMOTTIL HOUSE, PULLANKODE, ARACKAL VILLAGE, PATHANAPURAM TALUK, EDAYAM P.O., KOLLAM DISTRICT 691001. 6. JIJI GEORGE, S/O.GEORGE, MAMMOTTIL HOUSE, PULLANKODE, ARACKAL VILLAGE, PATHANAPURAM TALUK, EDAYAM P.O., KOLLAM DISTRICT 691001. 7. REJI GEORGE, S/O.GEORGE, MAMMOTTIL HOUSE, PULLANCODE, ARACKAL VILLAGE, PATHANAPURAM TALUK, EDAYAM P.O., KOLLAM DISTRICT 691001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sd/- OPC NO. 3972/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1THE TRUE COPY OF THE PLAINT DATED 8.10.2009 IN OS.334/2009 OF MUNSIFF'S COURT, PUNALUR. EXT.P2THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER ON 6.2.2010. EXT.P3THE TRUE COPY OF THE AFFIDAVIT AND INTERIM APPLICATION FILED BY THE RESPONDENTSS FOR AMENDMENT OF THE PLAINT AS IA.NO.1790/2011 DATED 3.9.2011. EXT.P4THE TRUE COPY OF THE OBJECTION DATED 12.10.2011 FILED BY THE PETITIONER IN EXT.3 APPLICATION. EXT.P5THE TRUE COPY OF THE ORDER DATED 16.11.2011 IN IA.1790/2011 IN OS.NO.334/2004. RESPONDENTS' EXHIBITS NIL TRUE COPY P.A. TO JUDGE sd/- THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3972 of 2011 -------------------------------------- Dated this the 6th day of December, 2011. JUDGMENT The defendant in O.S.No.334 of 2009 of the court of learned Munsiff, Punalur challenges Ext.P5, order allowing amendment of plaint to incorporate a prayer for mandatory injunction. 2. Respondents sued petitioner in O.S.No.334 of 2009, originally for a decree for prohibitory injunction against trespass and making constructions in the suit property alleging that petitioner purchased 25 cents from one Fr.John during the pendency of earlier litigations for invalidating certain documents of title and other reliefs. Petitioner contended that he is a bonafide purchaser without notice of the pending litigations and that he has constructed a building in the suit property spending lakhs. Thereon respondents filed I.A.No.1790 of 2011 for amendment of the plaint to incorporate a prayer for mandatory injunction to remove the structure constructed by petitioner. Petitioner resisted that application on various grounds including that relief of mandatory injunction is lost to the respondent by acquiescence, waiver, etc. It was also contended that relief prayed for is barred under Order II, Rule 2 of the Code of Civil procedure. Learned Munsiff observed that those contentions are not required to be gone into while considering the request for amendment as merit of the claim sought to be incorporated need not be judged at that stage. Accordingly the request for amendment was allowed, which is under challenge. OP(C) No.3972/2011 2 3. Learned counsel has re-asserted the contentions raised by petitioner before the court below and submitted that if this Court is not inclined to interfere with the order under challenge, petitioner may be given opportunity to file additional written statement in answer to the amended plaint. 4. As rightly pointed out by the learned Munsiff it is not necessary or required for this court to decide the merit of relief sought to be incorporated by amendment. I must also bear in mind that the request for amendment was made before the trial commenced as is revealed from the order under challenge. In that view of the matter there is no reason to interfere with the order under challenge. Resultantly this Original Petition fails. It is dismissed. It is open to the petitioner to raise all his contentions as regards sustainability of the relief of mandatory injunction in the additional written statement being filed in answer to the amended plaint. THOMAS P.JOSEPH, Judge. cks