IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 WP(C).No. 33124 of 2009(O) -------------------------- AGAINST THE ORDER IN IA.3486 /2009 IN OS.285/2008 of PRL.M.C.KOZHIKODE-I .................... PETITIONER(S): --------------- CHANDRAN GURUKKAL, AGED 71 YEARS, S/O.THAYYIL CHERORAMANNIL SAMI, ASWANI, KACHERI AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): --------------- SUDHEESH, AGED 38 YEARS, S/O.KRUVANCHERI RAMACHANDRAN, 'SHOURAM', P.O.CHEVARAMBALAM, CHEVAYUR AMSOM, DESOM, KOZHIKODE TALUK. ADV. SMT.T.RESMI DAMODARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.33124/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN THE SUIT, O.S.NO.285 OF 2008. EXT.P2: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE DEFENDANT/RESPONDENT. EXT.P3: COPY OF THE CERTIFIED COPY OF THE DOCUMENT NO.2825 OF 1963. EXT.P4: COPY OF THE AMENDMENT APPLICATION SUBMITTED BY THE PLAINTIFF ON 16.9.2009 AS I.A.NO.3486 OF 2009. EXT.P5: COPY OF THE ORDER DATED 2.11.2009 IN I.A.NO.3486 OF 2009 IN O.S.NO.285 OF 2008 ON THE FILES OF PRINCIPAL MUNSIFF CORUT-I, KOZHIKODE. EXT.P6: COPY OF THE FINAL LIST OF CASES FOR THE MONTH OF SEPTEMBER 2009 OF PRL. MUNSIFF COURT I, KOZHIKODE. EXT.P7: COPY OF THE FINAL LIST OF CASES FOR THE MONTH OF OCTOBER, 2009 OF PRL. MUNSIFF COURT I, KOZHIKODE. /TRUE COPY/ P.A TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.33124 OF 2009 () ----------------------------------- Dated this the 20th day of January, 2010 J U D G M E N T Petitioner is the plaintiff in O.S.No.285 of 2008 on the file of the Principal Munsiff Court, Kozhikode. Suit is one for declaration of the right of easement of the plaintiff over a pathway described as B schedule in the suit. Suit claim was resisted by the respondent/defendant filing a written statement. The learned counsel for the petitioner/plaintiff submits that previously plaint allegations constituted only a claim of easement by necessity, and by way of amendment, claim of easement by prescription was also applied for. That amendment application was dismissed by the learned Munsiff holding that it was highly belated as the trial of the suit had already commenced. Though the suit is ripe for trial, it has not been included in the special list nor recording of the evidence commenced is the submission of the counsel. Perusing Ext.P5 order, other than stating that there is no WPC.33124/09 2 sufficient reason to entertain the application, the court below has not considered the application on its merits. It appears that the only reason which weighed with the court in dismissing the application vide Ext.P5 order was that it has been filed belatedly. Having regard to the fact that the parties, normally, will get an opportunity to rectify the pleadings and also lead evidence only before the trial court, I find the merit of the amendment canvassed also should have been looked into, and, after hearing both sides, more reasoned order should have been passed by the court. However, it is noticed that there was some delay in moving for the amendment application. Taking that also into consideration, there will be a direction to the court below to consider the matter afresh on its merits after extending an opportunity to the respondent to file objection to the amendment application and hearing both sides, subject to payment of cost of Rs.750/- (Rupees seven hundred and fifty only) to the respondent within a period of ten days from the date of this judgment. Cost ordered shall be paid to the counsel appearing for the respondent and a memo filed before this Court. If cost is not WPC.33124/09 3 paid as directed, Ext.P5 order shall undisturbed with the writ petition dismissed. Post for report after ten days. S.S.SATHEESACHANDRAN JUDGE prp