IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 WP(C).No. 20894 of 2010(O) -------------------------- OS.411/2000 of MUNSIFF COURT, CHALAKUDY .................... PETITIONER --------------- KUNJUVAREED, AGED 69 YEARS, S/O.OUSEPH, PLAYYAPPILLY HOUSE, SUGATHY JUNCTION, THIRUMUDIKUNNU, KORATTY, THRISSUR DISTRICT. BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.A.ANITHA RESPONDENT: --------------- SANAN, AGED 42 YEARS, S/O.PADAPRAKKANVILA VEETTIL SUBBAYAN, SUGATHY JUNCTION, THIRUMUDIKUNNU, KORATTY, THRISSUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2010 , THE COURT ON the SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 20894 of 2010 --------------------------------------- Dated this 16th day of July, 2010 JUDGMENT Defendant in O.S.No.241 of 2000 of the court of learned Munsiff, Chalakudy is the writ petitioner. That is a suit for injunction against petitioner/defendant trespassing into plaint B schedule way or obstructing its user by respondent/plaintiff for access to plaint A schedule belonging to him. He claimed that plaint A schedule belongs to him as per document No.2891 of 2000 and that plaint B schedule is his only access to plaint A schedule from the PWD road, plaint B schedule is having a width of 15 links and that apart from himself, about 17 families are using the said way taking vehicles through plaint B schedule. He is running an industrial unit to which he is taking vehicles through plaint B schedule. Petitioner wanted respondent to provide employment for his wife and children in that industrial unit which respondent could not oblige and thereon petitioner started obstructing user of plaint B schedule. Hence the suit. Petitioner denied existence of any such way and other allegations in the plaint. He also contended that the suit is bad for non-joinder of necessary parties as his wife and children are not impleaded in the suit. Learned Munsiff originally dismissed the suit holding that there is no reliable evidence regarding identity of the disputed way. Respondent W.P.C.No.20894 of 2010 : 2 : challenged that judgment and decree in appeal in A.S.No.123 of 2005. Appellate court allowed the appeal remanded the case to the court of learned Munsiff for fresh disposal with liberty to the respondent to amend plaint and adduce further evidence in the matter. Thereafter taking into account plea of petitioner regarding non-joinder of necessary parties respondent filed I.A.No.692 of 2010 for amendment of the plaint making for impleadment and to make certain changes in boundaries of the disputed way and an averment regarding entitlement of respondent over the said way. Petitioner filed objection to the said applications but learned Munsiff was of the view that there is no scope for objection in the light of the remand judgment in A.S.No.123 of 2005 and accordingly allowed the applications. The common order allowing the said applications vide Ext.P5, order is under challenge in this writ petition. Learned counsel for petitioner contends that objection preferred by petitioner was not even referred to by the court below, not to say that it was not considered. It is also contended that by the proposed amendment entire plaint B schedule is changed and that has affected the nature and character of the suit. 2. So far as order on I.A.No.692 of 2010 for impleadment of wife and children of petitioner is concerned that application was necessitated by a contention raised by petitioner in the written statement that they are necessary parties. In other words, W.P.C.No.20894 of 2010 : 3 : impleadment of wife and children of petitioner was invited by the plea of petitioner himself. It is up to the impleaded parties whether they should contest the suit or not. 3. More severe challenge is to the order allowing amendment of the plaint. It is true that some change is attempted to be brought about regarding boundaries of disputed plaint B schedule way but there is no case for petitioner that by the proposed amendment there is any change of the disputed way. It is not as if by amendment some other way is sought to be brought into the suit. Amendment is only to make further clear identity of the way already stated in the plaint schedule. I must also bear in mind that petitioner is not admitting the existence of plaint B schedule. The mere fact that boundary of disputed way is sought to be amended cannot mean that there is any change of plaint B schedule or its lie. The other amendment sought for is a plea that prior owners of the properties had dedicated plaint B schedule for the use of public and they intended to form it into a public way. In that regard even in the plaint as originally stood respondent has a case about former owners forming the disputed plaint B schedule and it being used by respondent and other 17 families. Thus, a public use of the said way was stated in the plaint. Now what is sought to be explicitly brought in by amendment is a plea of dedication. That does not in any way, in my view change or alter the character and nature of the suit. Appellate court remanded the W.P.C.No.20894 of 2010 : 4 : case to the court of learned Munsiff with liberty to the respondent to amend the plaint and adduce further evidence. That remand judgment has become final. In considering the liberty granted to the respondent one has to bear in mind that trial court had dismissed the suit for want of proper identity of plaint B schedule. It is therefore clear that it is to identify the disputed plaint B schedule that respondent was given liberty to amend the plaint and lead further evidence. It is in the above circumstances that though not in so many words learned Munsiff has referred to the objection raised by petitioner and said that there is no room for any such objection. No doubt, learned Munsiff ought to have considered the objection raised and passed a speaking order. But for the mere reason of absence of detailed discussion of the objection preferred by petitioner I do not think it necessary or justifiable, having regard to the facts and circumstances which I have stated above to set aside the order and remit the applications for reconsideration by the learned Munsiff which would only an empty formality. I do not find, in the circumstances reason to interfere with the order under challenge. The writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-