IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S. S. SATHEESACHANDRAN FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 WP(C).No. 29546 of 2009(O) --------------------------------------- OS.NO.1361/2008 OF MUNSIFF COURT, THRISSUR. .................... PETITIONER: ------------------- BHANUMATHI, AGED 48, D/O.KOOTTUMAKAL GANGADHARAN, PADIYAM VILLAGE, MUTTICHOOR DESOM, THRISSUR TALUK. BY ADVS. MR.G.SREEKUMAR (CHELUR), SMT.PREETHY KARUNAKARAN, MR.K.RAVI (PARIYARATH). RESPONDENTS: ------------------------ 1. SREEJITH, S/O.KARTHIKEYAN POYYARA, VADAKUMURI VILLAGE, PERINGOTUKARA DESOM, THRISSUR TALUK. 2. KAMALAN, W/O.KARTHIKEYAN POYYARA, VADAKUMURI VILLAGE, PERINGOTUKARA DESOM, THRISSUR TALUK. R1 & R2 BY ADV. MR.C.E.UNNIKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.29546/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO.1361/08 DTD. 28/04/08 ON THE FILE OF THE MUNSIFF COURT, THRISSUR. EXT.P.2: COPY OF THE COMMISSIONER'S REPORT FILED IN EXT.P.1. SUIT DTD. 19/05/08. EXT.P.3: COPY OF THE SALE DEED BEARING NO. 1220/04 DTD. 01/01/04 OF THE ANTHIKAD SUB REGISTRY. EXT.P.4: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN EXT.P.1. SUIT DTD. 31/08/08. EXT.P.5: COPY OF THE I.A. NO. 8437/09 IN O.S. NO.1361/08 DTD. 29/09/09 ON THE FILE OF THE MUNSIFF COURT, THRISSUR. EXT.P.6: COPY OF THE OBJECTION TO EXT.P.5 FLED BY THE RESPONDENTS HEREIN DTD. 12/10/09. EXT.P.7: COPY OF THE ORDER PASSED IN EXT.P.5 APPLICATION DTD. 14/10/09. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.29546 of 2009 - O --------------------------------- Dated this the 30th day of October, 2009 J U D G M E N T Petitioner is the plaintiff in O.S.No.1361 of 2008 on the file of the 2nd Additional Munsiff Court, Thrissur. The writ petition is filed challenging Ext.P7 order passed by the learned Munsiff dismissing an application for amendment moved by the petitioner/plaintiff. Amendment sought for related to correction of the boundaries of the plaint schedule. Suit was one for injunction. Suit stood posted in the special list for trial on 20.10.2009. Writ petition filed on the previous day, was moved before this Court on 20.10.2009. After hearing the counsel for the petitioner, at the time of admitting the writ petition an interim order was issued directing adjournment of the trial of the suit without removing the case from the list. Now, it is reported that the suit was dismissed on that day though an application was moved by the plaintiff for adjourning the trial of the suit. As the order passed by this Court to adjourn trial was on the same date, the dismissal of the suit, evidently, must have been without W.P.(C).No.29546 of 2009 - O 2 knowledge of that order. Whatever that be, having regard to the circumstances indicated above, the order of dismissal of the suit has to be reversed and the suit to be restored to file. It is reported that the petitioner has already moved an application for restoring the suit on file. In the light of the order previously passed by this Court directing for adjournment of the trial and the dismissal having been made though without noting of such order, as indicated earlier, it is liable to be annulled. The court below is directed to restore the suit and dispose it on merits. 2. In the writ petition, petitioner/plaintiff challenges Ext.P7 order by which his application for amendment of the plaint was dismissed by the court. From the submissions made and also the exhibits tendered with the petition, I find the court below dismissed the application for the sole reason that the defendant in their written statement had stated in unmistakable terms that there were mistakes in the plaint schedule. Despite such mistakes being brought to notice of the plaintiffs by the contentions stated in the written statement by the defendant there was default on the part of the plaintiff in seeking for W.P.(C).No.29546 of 2009 - O 3 amendment and as such application moved at a later stage was highly belated was the reason which prompted the court below to dismiss the application. But, it is seen that the amendment sought for related only to changes in the boundaries of the plaint schedule and that being so, it could have been allowed subject to terms, as no prejudice or injury is likely to be suffered by the defendants which could not be compensated in terms of money. Ext.P5 amendment application shall stand allowed in reversal of Ext.P7 order subject to payment of cost of Rs.750/- to the counsel for the respondents. Learned counsel for the petitioner submits that cost ordered will be paid today itself. That being so, writ petition need not be retained on file to verify payment of cost. in case the defendant wants to file additional written statement consequent to the amendment now ordered, the court below shall extend him an opportunity to do so. Since the proposed amendment relates only to the correction of mistakes in boundaries, no further steps by any side is required to proceed with the trial of the suit other than filing of additional written statement by the defendants. Court below is therefore directed W.P.(C).No.29546 of 2009 - O 4 to dispose the suit after its restoration as directed earlier, once the amendment is carried out and the additional written statement, if any, filed by the defendants, within a further period of two months. Subject to the above direction, writ petition is disposed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-