IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 OP(C).NO. 2721 OF 2011(O) --------------------------------------- AGAINST THE ORDER DATED 08/08/2011 IN IA 1354/2011 IN OS.305/2003 OF MUNSIFF COURT, PARAVUR .................... PETITIONERS: -------------------- 1. NANAPPAN, S/O. DAMODARAN, MOOLAKKADAVIL HOUSE, THURUTHIPURAM KARA, MOOTHAKUNNAM VILLAGE, PARUR TALUK. 2. THAMPI, S/O. NANAPPAN, MOOLAKKADAVIL HOUSE, THURUTHIPURAM KARA, MOOTHAKUNNAM VILLAGE, PARUR TALUK. BY ADV. SRI.C.CHANDRASEKHARAN SRI.P.VISWANATHA MENON RESPONDENT(S): -------------------------- AJITHKUMAR, S/O.KUNJAN PILLAI, MOOLKKAPARAMBIL HOUSE, DEVI NIVAS, THURUTHIPURAM KARA, MOOTHAKUNNAM VILLAGE, THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2721 of 2011 --------------------------------------- Dated this 17th day of August, 2011 JUDGMENT Defendant in O.S.No.305 of 2003 of the Court of learned Munsiff, North Paravur is the petitioner before me. That is a suit for fixation of boundary, recovery of possession of the suit property originally stated as 3.438cents, damages and for injunction, both prohibitory and mandatory. Learned Munsiff decreed the suit but the appellate court in A.S.No.52 of 2008 set aside the decree and remitted the case to the trial court with a direction that Exts.C1 and C1(a), report and plan in the way stated in the judgment of the appellate court are not acceptable and directing the learned Munsiff to remit Exts.C1 and C1(a) to the same Commissioner with a direction to measure the suit property and property of petitioners based on their title deeds and survey records. Accordingly the Advocate Commissioner submitted report and plan where, extent of property to which respondent/plaintiff is (allegedly) entitled, as the learned counsel tell me is shown as 4.299cents. Respondent was not satisfied with the report and plan and filed I.A.No.322 of 2011 to remit the report and plan for the reason stated that there was no diagonal O.P(C).No.2721 of 2011 -: 2 :- measurement of the property taken. Learned counsel tells me that the said application was rejected by the learned Munsiff. Petitioners preferred Ext.P3, objection to the report and plan. In the meantime, respondent filed I.A.No.1354 of 2011 to amend the plaint, according to the petitioners with the mischievous intention of incorporating in the plaint schedule the total extent of suit property as 4.299cents as against the originally stated 3.438cents. That application against the objection of petitioners was allowed by the learned Munsiff on terms by Ext.P6, order dated 08.08.2011. Ext.P6, order is under challenge. 2. Learned counsel contends that allowing the amendment is beyond the scope of the remand order in A.S.No.52 of 2008. It is also contended by learned counsel, alternatively that after allowing the application for amendment as per Ext.P6, order dated 08.08.2011 the case was posted on 09.08.2011 for filing additional written statement which petitioners could not comply and now the case is posted to 18.08.2011 for trial in the list as if petitioners have no additional written statement to the amended plaint. It is prayed that in case Ext.P6, order is sustained, petitioners will be given an opportunity to file additional written statement. O.P(C).No.2721 of 2011 -: 3 :- 3. So far as the correctness of Ext.P6, order is concerned, true that in Ext.P1, judgment the appellate court directed that remand of the case is to remit Exts.C1 and C1(a) to the Advocate Commissioner with a direction to measure out plaint schedule property and property of petitioners based on title deeds and survey records and to prepare plan with the assistance of Taluk Surveyor. But, I must bear in mind that I.A.No.1354 of 2011 is nothing but a consequence of that remission and the Advocate Commissioner submitting fresh report and plan showing the property to which respondent is (allegedly) entitled as 4.299 cents. Therefore, it cannot be said that by allowing the amendment learned Munsiff has gone beyond the scope of the remand order. In the circumstance, no interference is required with Ext.P6, order. 4. But, petitioners must get sufficient opportunity to file additional written statement. If Ext.P6, order was posted on 08.08.2011 and petitioners are called upon to file additional written statement on 09.08.2011, I think it may not have been possible for them to comply with the order. Petitioners are entitled to get breathing time to file additional written statement. I am inclined to grant them time to file additional written O.P(C).No.2721 of 2011 -: 4 :- statement, if any. Resultantly this original petition is disposed of in the following lines: (i) If the case is posted for trial on 18.08.2011 learned Munsiff is directed to adjourn the trial to a day after one month from this day. (ii) Petitioners shall file additional written statement, if any in answer to the amended plaint within two weeks from this day. (iii) In case additional written statement is filed, learned Munsiff shall frame additional issues if any required and then after completing the pre- trial steps if any, post the case for trial in the list. (THOMAS P JOSEPH, JUDGE) Sbna/-