IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(C).No.34976 of 2008 (L) ---------------------------------- OS.38/2005 of SUB COURT,THODUPUZHA .................... PETITIONER IN W.P.C./RESPONDENT IN I.A.720/08/PLAINTIFF IN OS.38/05: ------------------------------------------------------------------------------- JANAMMA, W/O.BALAKRISHNAN SURIYANKUNNEL HOUSE, KANJIRAKATTOM KARA THODUPUZHA VILLAGE, THODUPUZHA TALUK. NOW R/AT.KALAMASSERY,ERNAKULAM. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS IN W.P.C./PETITIONERS 2 TO 5 IN I.A.720/08/DEFENDANTS NO.2 TO 5 IN O.S.38/05: ------------------------------------------------------------- 1. VASANTHI, D/O.LATE GOVINDAKURUP VADAKKINIMARATHU HOUSE, NAYATHODE KARA, ANGAMALY VILLAGE, ALUVA TALUK. 2. GEETHA, D/O.LATE GOVINDAKURUP VADAKKINIMARATHU HOUSE, NAYATHODE KARA ANGAMALY VILLAGE, ALUVA TALUK 3. PREMACHANDRAN S/O.LATE GOVINDAKURUP, VADAKKINIMARATHU HOUSE NAYATHODE KARA, ANGAMALY VILLAGE ALUVA TALUK. 4. UNNIKRISHNAN S/O.LATE GOVINDAKURUP DO.DO. ADV. SRI.JOSE JOSEPH ARAYAKUNNEL FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.34976 of 2008 (L) APPENDIX PETITIONER'S EXTS:- EXT.P1:- PLAINT FILED BY THE PETITIONER IN O.S. NO.38/05. EXT.P2:- WRITTEN STATEMENT FILED BY DEFENDANTS IN THE O.S. NO.38/05. EXT.P3:- I.A. NO.720/08 ALONG WITH AFFIDAVIT FILED BY DEFENDANT IN O.S.38/05. EXT.P4:- OBJECTION FILED BY THE PETITIONER TO I.A.720/08 IN O.S.38/05. EXT.P5:- ORDER ON I.A.720/08 PASSED BY THE SUBORDINATE JUDGE, THODUPUZHA. .......................... K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.34976 of 2008 ------------------------------------------------ Dated this the 15th day of January, 2009 JUDGMENT Petitioner is the plaintiff in O.S. No.38/05 on the file of the Sub Court, Thodupuzha. It is submitted that trial in the case started on 26.8.2008 and evidence was closed on 4.9.2008 and the case was adjourned to 16.9.2008 for final hearing and it was adjourned from that date to some date after 18.9.2008. On 18.9.2008 I.A.No.720/08 was filed by the respondents/defendants seeking leave to amend the written statement incorporating an additional statement to the effect that during first week of August 2005 the scheduled property was trespassed upon and taken possession of by the petitioner/ plaintiff and wanted to amend the prayer column in the written statement, wherein counter claim had been advanced, deleting the W. P. C. No.34976 of 2008 -2- portion “in the event of the plaintiff taking possession of the counter claim scheduled property” from 'B' prayer in Exhibit P2 counter claim. It is also prayed that possession of the counter claim scheduled property may be restored to the defendants from the petitioner/plaintiff by the court. The said amendment was allowed by the court below vide Exhibit P5 order despite Exhibit P4 objection filed by the petitioner/plaintiff. 2. It is contended before me by the learned counsel for the petitioner that it is after adducing of the evidence in the suit and to get over the hurdle created by the admission of DW2, the second defendant that the prayer is sought to be got amended by the respondents/defendants and that therefore, Exhibit P3 application for amendment of written statement should not have been allowed and that Exhibit P5 order allowing the W. P. C. No.34976 of 2008 -3- amendment has to be set aside. 3. Ext.P1 is the plaint in O.S.98/05. The prayers advanced by the petitioner/plaintiff in that suit is for a decree declaring her title and possession over the scheduled property annulling document No.1443/03 of Sub Registry office, Thodupuzha dt.27/05/03 and for a decree of permanent prohibitory injunction restraining the defendants from creating any document or encumbrance affecting the scheduled property and for other consequential reliefs. In Ext.P2 written statement wherein a counter claim has been advanced by the respondents/defendants also the prayers are for declaration of title and possession of the defendants in the counter claim scheduled property which is the same as plaint schedule property and for a decree for recovery of possession of the same in case the plaintiff takes possession of the said W. P. C. No.34976 of 2008 -4- property and for other incidental reliefs. The prayers so advanced by the parties show that both parties have asserted that they are in possession of the scheduled property. It is pointed out by counsel for the petitioner/ plaintiff that DW1/the second defendant in the suit has admitted in cross examination as follows:- and further that 4. The above statement of DW1 is an admission which binds the defendants. In the light of the above admission, the prayer W. P. C. No.34976 of 2008 -5- advanced in Ext.P3 application for amendment of written statement raising a contention that after the filing of the written statement the plaintiff and her men had broke open the lock of the shop building of the plaint schedule and took possession of the building during the first week of August, 2005 which was remaining in the possession of the defendants from 27/05/03; that the said fact was known to the defendants only much later as they are residing in far away places etc. are pleadings which are inconsistent with the evidence that has already been adduced in the case and the amendment application itself was filed only on 18/09/08 after the evidence in the case was closed and the case stood posted for final hearing. I am not dealing with the merits of the case on the pleadings advanced by either side as they may tell upon the decision that would be taken by the trial court in the W. P. C. No.34976 of 2008 -6- matter. Suffice to say that Ext.P5 order allowing amendment of the written statement should not have been allowed after closing of the evidence in the case so as to enable the respondents to set up a case inconsistent with the admissions made by DW1 in her deposition. 5. In the result, allowing this Writ petition, I set aside Ext.P5 order allowing amendment of the written statement as prayed for in Ext.P3. K.P.BALACHANDRAN, JUDGE kns/-