IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 OP(C).No. 89 of 2011(O) ---------------------------------- OS.552/2006 of II ADDL.MUNSIFF COURT,NEYYATTINKARA .................... PETITIONER -------------------- PARAMESWARAN PILLAI SYAMKUMAR, S/O.PARAMESWARAN PILLAI, SANKAR LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM FROM SARASWATHY VILASOM, KUNNATHUKAL DESOM, KUNNATHUKAL VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): ------------------------ KRISHNA PILLAI SADASIVAN NAIR, S/O.KRISHNA PILLAI, AGED 79 YEARS, MURALEEDHARA VILASOM, KUNNATHUKAL (PO), KUNNATHUKAL DESOM, KUNNATHUKAL PAKUTHY, THIRUVANANTHAPURAM-695 042. ADV. SRI.C.P.PEETHAMBARAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.89/2011 APPENDIX PETITIONER'S EXHIBITS P1:_ COPY OF THE PLAINT IN OS. 552/2006 ON THE FILE OF THE MUNSIFF'S COURT, NEYYATTINKARA. P2:- COPY OF THE WRITTEN STATEMENT IN OS. 552/2006 ON THE FILE OF THE MUNSIFF'S COURT, NEYYATTINKARA. P3:- COPY OF THE ADDITIONAL WRITTEN STATEMENT IN OS.552/2006 ON THE FILE OF THE MUNSIFF'S COURT, NEYYATTINKARA. P4:- COPY OF THE IA. 573/2010. P5:- COPY OF THE IBJECTION IN EXT.P4. P6:- COPY OF THE ORDER DTD. 8.2.2010. P7:- COPY OF THE PETITION REGISTERED AS IA. 7467/2010. P8:- COPY OF THE ORDE RON IA. 573/2010 DTD. 30.11.2010 OF THE COURT OF THE ADDL. MUNSIFF-II, NEYYATTINKARA. TRUE COPY P.S. TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(Civil). No. 89 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of March, 2011. JUDGMENT In this original petition filed under Article 227 of the Constitution of India, the petitioner assails Ext.P8 order, by which his application for amendment was dismissed by the court below. 2. The petitioner is the plaintiff in O.S.552 of 2006 before the Munsiff's Court, Neyyattinkara. The suit was one for recovery of possession and other reliefs. The defendant entered appearance and filed his written statement. The suit was hotly contested and evidence was adduced. According to the plaintiff/petitioner, he realised that a mistake has been committed in paragraph 1 of the plaint in mentioning that Easwara Pillai Gopala Pillai, to whom the title was traced by the plaintiff, was the 11th executant in partition deed of 1106 while infact O.P.(C).89/2011. 2 he was the fifth executant. The plaintiff/petitioner therefore filed I.A.573 seeking to have the error rectified. 3. The petition was very strongly opposed by the respondent, who pointed out that it amounts to withdrawal of an admission which has gone in favour of the defendant and cause serious prejudice to him. It was also pointed out that infact the plaintiff was given an opportunity to adduce evidence to substantiate his case, but he did not do so. It was long after the evidence was over that the amendment application has been moved. It is also pointed out that in fact in the written statement filed by him the error has been pointed out. Still the plaintiff has done nothing in the matter. In these circumstances, it is pointed out that the lower court was justified in dismissing the petition. 4. It is unfortunate that a routine amendment, which should have been allowed, has been dismissed resulting in further dragging up of the trial of the suit. All that the plaintiff wanted was to substitute the 11th executant as mentioned in paragraph 1 of the plaint as 5th executant. O.P.(C).89/2011. 3 He pointed out that the name of both the executants is Easwara Pillai Gopala Pillai. The plaintiff has pointed out that it was a bonafide mistake and there was no malafides in amending the plaint when the mistake was realised and noticed. 5. One fails to understand what prejudice will be caused to the defendant by allowing the amendment in so far as the other pleadings remain the same. The observation of the court below that no evidence has been produced does not appear to be very convincing. All that one has to do was to refer the partition deed made mention of in the plaint and that would have cleared all the doubts in the mind of the court. Instead of doing that, the court below wanted extra evidence in the matter. Of course,it is true that there is unexplained delay on the part of the plaintiff in seeking amendment. Whatever that be, since no right of the defendant is affected nor his contentions will be prejudiced by the amendment, it is felt proper and necessary to allow the amendment reserving the right of the defendant to raise O.P.(C).89/2011. 4 all contentions, which he had in the suit. Any injury caused to the defendant can be compensated by awarding costs. In the result, this petition is allowed, the impugned order is set aside and I.A.573 of 2010 stands allowed on condition that the petitioner pays a sum of Rs.2,500/- as costs to counsel appearing for the respondent before this court. There will be a direction to the court below to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment. The petitioner will also be entitled to recall P.W.1 for the limited purpose of speaking with reference to the amendment application. P. BHAVADASAN, JUDGE sb.