IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 WP(C).No. 34822 of 2008(U) -------------------------- AGAINST THE ORDER IN IA.6812/2008 IN OS.583/2007 of RENT CONTROL COURT, TVM .................... PETITIONER(S): --------------- K.SOMAN NAIR, S/O.A.KRISHNA PILLAI, AGED 58 YEARS, RESIDING AT KAVUVILAKATHU VEEDU, KOLIYACODU, INDUSTRIAL ESTATE P.O., PAPPANAMCODE. BY ADV. SRI.V.N.GOPALAKRISHNAN NAIR SRI.G.SURARSHAN RESPONDENT(S): --------------- 1. K.SYAMALAKUMARI AMMA, AGED 48 YEARS, D/O.PARUKUTTY AMMA, RESIDING AT THUNDUVILAKATHU VEEDU, KUNNAPPUZHA, ARAMADA P.O THIRUVANANTHAPURAM. 2. SANIL.J.,AGED 36 YEARS, S/O.JANARDHANAN NAIR, RESIDING AT J.U.NIVAS, PUNAYIL PARAVOOR P.O. KOLLAM. ADV. SRI.RAM MOHAN.G. FOR R2 SRI.G.P.SHINOD FOR R2 SRI.MANU V. FOR R2 SRI.R.SUDHISH FOR R1 SMT.M.MANJU FOR R1 SRI.K.R.RANJITH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.34822/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.583/2007 BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM DATED 24.3.2007 EXT.P2: COPY OF THE COMMISSION REPORT DATED 27.3.2007 BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM. EXT.P3: COPY OF THE AMENDMENT APPLICATION IN I.A.NO.6812/2008 IN O.S.NO.587/2007 BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM DATED 16.8.2008 EXT.P4: COPY OF THE OBJECTION IN I.A.NO.6812/2008 IN O.S.NO.587/2007 BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM DATED 1.9.2008. EXT.P5: COPY OF THE ORDER IN I.A.NO.6812/2008 IN O.S.NO.587/2007 BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM DATED 29.9.2008. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.34822 OF 2008 () ----------------------------------- Dated this the 10th day of March, 2010 J U D G M E N T Petitioner is the plaintiff in O.S.No.583 of 2007 on the file of the Munsiff (Rent Control) Court, Thiruvananthapuram. Suit is one for declaration of prescriptive easement and for injunction. Suit claim was resisted by the 2nd defendant, but, practically supported by the 1st defendant. Plaint 'A' schedule property, it is alleged, belong to the 1st defendant and 'B' schedule to the 2nd defendant. A pathway is running through 'A' and 'B' schedule properties and it leads to the burial place of the parents of the plaintiff and 1st defendant was the case of the plaintiff to claim prescriptive easement over a pathway described as 'C' schedule as running through 'A' and 'B' schedule properties. After the written statement was filed by the defendants, plaintiff moved an application for amending the plaint to raise some more allegations and also include 'D' schedule to specify the burial place of his parents. That application was objected to by the 2nd defendant. The learned WPC.34822/08 2 Munsiff, after hearing both sides, dismissed the application vide Ext.P5 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. Perusing the impugned order with reference to the other exhibits produced in the writ petition, I find that the dismissal of the application for amendment in its entirety was not proper. Ext.P1 is the copy of the plaint and Ext.P3 is the copy of the amendment application. In Ext.P3 amendment application, plaintiff has sought for correcting some mistakes which had occurred in showing the relationship of the parties in the plaint. Even the 2nd defendant has not raised any objection in allowing that part of the amendment sought for. Strangely enough, the court below has not examined the merit of the amendment application with reference to the reliefs canvassed in the suit and also whether a declaration of prescriptive easement can be claimed by any party without having any property closeby WPC.34822/08 3 the property of the defendants over which such easement was claimed as of right. In the present suit, the plaintiff has not set up a right that he has any property beside 'A' and 'B' schedule. When that be so, the amendment sought for with respect to 'D' schedule and the consequential allegations sought to be introduced in the plaint do not arise for consideration. So, that part of the order of the court below declining the amendment is only to be approved but for different reasons. But the amendment sought for with respect to paragraphs 1 to 3 in Ext.P3, which relate to correction of mistakes in the plaint already presented, deserve to be allowed, and to that extent, the order of the court below shall stand modified. Petitioner/plaintiff shall be permitted to correct the plaint to the extent indicated above. Ext.P5 order shall stand modified accordingly. Writ petition is accordingly disposed. S.S.SATHEESACHANDRAN JUDGE prp