IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 WP(C).No. 9775 of 2008(Y) ------------------------- OS.50/2006 of PRINCIPAL SUB COURT,KOCHI .................... PETITIONER: ------------ FATHIMA, W/O.LATE XAVIER, PANANCHIKKAL HOUSE, C.C.NO.16/802, UNNI RAMESAN ROAD, KOCHI-5, REPRESENTED BY HER POWER OF ATTORNEY HOLDER GEORGE JOHNSON, AGED 36 YEARS, S/O.JOHNSON, HOUSE NO.44/990, LITTLE FLOWER CHURCH ROAD, KOCHI-17. BY ADV. SRI.JOSEPH FRANKLIN RESPONDENTS: ------------- SANDHYAVU, S/O.LATE GEORGE, AREEVEETTIL HOUSE, ILLIKKAL, KUNBALANGI, KOCHI-7. BY ADV. SRI.BABU KARUKAPADATH FOR R1 SMT.M.A.VAHEEDA BABU FOR R1 SRI.JAGAN GEORGE FOR R1 SRI.K.A.NOUSHAD FOR R1 SRI.P.G.PRAMOD FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.9775 of 2008 EXT.P1 TRUE COPY OF THE AMENDMENT APPLICATION, I.A.NO.493/2007, FILED BY THE RESPONDENT. EXT.P2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER. EXT.P3 TRUE COPY OF THE COPY APPLICATION DATED 5.2.2008 EXT.P4 CERTIFIED COPY OF THE ORDER IN I.A.NO.493/07 IN O.S.NO.50/2006 ON THE FILE OF THE SUB COURT, KOCHI. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.9775 of 2008 ------------------------------- Dated this the 26th June, 2008. J U D G M E N T Defendant in O.S.No.50 of 2006, on the file of Sub Court, Kochi, is the petitioner, and plaintiff is the respondent. The suit is for specific performance of an agreement for sale. Respondent filed I.A.No.493/2007, an application under Rule 17 of Order VI of Code of Civil Procedure to amend the plaint. It was allowed under Ext.P4 order. Petitioner is challenging that order in this petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for the petitioner and learned counsel appearing for respondent were heard. 3. The argument of the learned counsel appearing for petitioner is that the agreement for sale does not provide for the boundaries now sought to be introduced by the respondent under Ext.P1 petition, and when the boundaries of the agreement for sale is vague, based on that agreement, no decree for specific performance could be passed, and in such circumstances, learned Sub Judge should not have allowed the application. W.P.(C) No.9775 of 2008 2 4. The learned counsel appearing for the respondent pointed out that by the amendment, respondent is only correcting the mistake in the description of the boundaries, as apart from the petitioner who was shown as person in possession, other property owner is also shown by the amendment, and in such circumstances, there is no reason to interfere with Ext.P4 order. 5. The learned counsel appearing for petitioner relying on the decision of the High Court of Jharkhand in Rajni Kumar Mahto v. Smt.Uma Devi Budhia and others (AIR 2005 JHARKHAND 13); High Court of Madhya Pradesh in Sambhajirao v. Vimlesh Kumari Kulshrestha and another (AIR 2004 MADHYA PRADESH 74); High Court of Rajasthan in Narain Singh v. Dalip Singh (AIR 1973 RAJASTHAN 45), and High Court of Madras in P.Retnasamy v. A.Raja Venkata Subramanian (2001 M.L.J. (Supp) 675), argued that respondent is not entitled to a decree for specific performance, based on an agreement which is having only vague description of the property. On hearing the learned counsel for both sides, I do not find any illegality or irregularity in the impugned order warranting W.P.(C) No.9775 of 2008 3 interference. The question whether the respondent is entitled to a decree for recovery of possession based on the agreement due to the vagueness of the boundary of the property is not a matter to be decided in an application filed under Rule 17 of Order VI of Code of Civil Procedure. It is a matter to be decided in the suit, after recording the evidence. Petitioner is at liberty to raise all contentions by filing an additional written statement. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.