IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 WP(C).No. 27325 of 2007(C) -------------------------- AGAINST THE ORDER IN IA 1613/07 IN OS.357/2003 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONERS: ---------------------- 1. A.AHAMMED, AGED 55, S/O. ABDUL KAREEM RAWTHER, RAZEENA MANZIL, ERUMAKUZHY MURI, PALAMEL VILLAGE. 2. NABEEZA, D/O PATHUMMA, KATTOOR PUTHEN PARAMBIL, KOZHENCHERRY. 3. UMMA SALMA, D/O PATHUMMA, -DO-..DO.... 4. SHAMSUDEEN, AJMAL MANZIL, ERUMAKUZHY MURI, PALAMEL VILLAGE. BY ADV. SRI.R.PADMAKUMAR SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT: ---------------------- SALAVUDEEN, CHARUVILAYYATHU VADAKKATHIL, ERUMAKUZHY MURI, PALAMEL VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.27325/2007 C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF PLAINT IN O.S.NO.357/03 MUNSIFF'S COURT, MAVELIKARA. EXT.P2: COPY OF WRITTEN STATEMENT DTD. 27/10/03 IN O.S.357/03 MC., MAVELIKARA. EXT.P3: COPY OF I.A.NO.2509/05 DTD. 2/12/2005 FILED BEFORE THE M.C., MAVELIKARA. EXT.P4: COPY OF OBJECTION FILED BY RESPONDENT BEFORE M.C., MAVELIKARA. EXT.P5: COPY OF JUDGMENT IN WP(C) NO.20762/06 OF THIS HON'BLE COURT DTD. 27/07/07. EXT.P6: COPY OF I.A.1613/07 IN O.S.357/03 DTD. 16/08/07 BEFORE MC., MAVELIKARA. EXT.P7: COPY OF OBJECTION DTD. 20/08/207. EXT.P8: COPY OF ORDER IN I.A.1613/07 IN O.S.357/03 DTD. 22/08/2007 M.C.MAVELIKARA. /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 27325 OF 2007 = = = = = = = = = = = = = = = Dated this the 7th day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the Munsiff, Mavelikkara in I.A.1613/07 in O.S.357/03 whereby the learned Munsiff has declined to entertain the application for amendment. At the out set I may state that the contentions of the parties are so confusing that one cannot really understand what is the prayer in the suit even. But that shall not detain the Court from moulding appropriate relief if a party is entitled to get. But the Court below dismissed this amendment application. 2. There is no dispute that five items of properties were set apart to the children by virtue of a document No.1740/92 by the mother. The recitals in the document will clearly show that what the mother intended was allow the children to enjoy the property from the date of the document itself and to get the mutations etc. change in their name. W.P.C 27325 OF 2007 -:2:- Unfortunately, the demarcation of the property was not done. It continues to be one property enjoyed by all the children together. Now, the suit is filed with a prayer to demarcate the properties by putting up proper boundaries and also for consequential injunction to restrain persons from illegally interfering with the possession of other men's property. Thereafter the present plaintiff moved an application for a mandatory injunction which the Court below declined on the ground that when joint possession is pleaded there cannot be any mandatory injunction. It is at this stage the Court has to look into the rival contentions of the contesting defendants. 3. The rival case of the contesting defendants as submitted before me is that they are claiming exclusive possession over item Nos.1 and 4 of the plaint schedule property. It is also submitted that there was an oral agreement to sell and in pursuance of the oral agreement they were put in possession of the property and thereafter they moved a suit for specific performance which has been W.P.C 27325 OF 2007 -:3:- decreed by the Court and it is at the stage of deposit of the amount this suit is filed. Whatever it may be, the fact is very clear that the defendants are claiming exclusive right and possession over items 1 and 4 of the plaint schedule property at least. 4. Now, what the plaintiff wants is to incorporate a prayer for recovery of possession on the strength of his title. When the defendants admit that they are in possession of the property and they do not admit the joint possession or exclusive possession of the plaintiff and when the properties are to be demarcated and separated whereby the title of the persons with respect to each items of property is being declared, is not the plaintiff entitled to enjoy the property which is set apart to him by his mother if it is not otherwise lost. In such situation I feel the prayer for recovery of possession cannot be disallowed. 5. The question whether the right accrued under the document is lost on account of the oral agreement to sell which has resulted in a decree for specific performance is a W.P.C 27325 OF 2007 -:4:- matter which has nothing to do with the present claim. That is altogether a different matter which has to be considered. Therefore I do not find the prayer to be obnoxious or impracticable. 6. The Court below found that there is inordinate delay in filing the application and it has been brought to my notice that Order 6 Rule 17 of the Code of Civil Procedure after the Amendment Act, the position is changed. It indicates that when it is in the trial stage one cannot file an application for amendment of the pleadings. Here is a case where the party has moved for a mandatory injunction which has been negatived by the Court on account of his own pleadings. Now he wants a relief for recovery of possession. There is no point in declining a right of a party in one case and direct him to file another suit for recovery of possession on the strength of the title if he is entitled to. The fundamental position is that as far as possible multiplicity of proceedings has to be averted. Therefore I feel there are sufficient reasons in this case for the delay which could have W.P.C 27325 OF 2007 -:5:- been condoned by the Court below and it should have allowed the application. The mere factum of allowing an amendment by itself will not constitute any right on the party for the reason other party is entitled to file additional written statement refuting all the allegations in the amended plaint and the parties are at liberty to set apart their own case which is to be considered by the Court. It is also a fundamental settled position of law that the Court is not entitled to look into the merits or demerits of the case at the time of considering an application for amendment of the written statement. So on the basis of these broad principles and to avoid multiplicity of proceedings the matter requires consideration and the Court should have allowed the application for amendment instead of throwing it in the threshold stage itself. Therefore the order under challenge is set aside and the application for amendment is allowed and the plaintiff is directed to carry out the amendment before the the lower Court and the lower Court on carrying out the amendment permit the defendants to file additional written W.P.C 27325 OF 2007 -:6:- statement refuting the allegations in the plaint and also raise such other contentions which they are legally entitled to, then proceed further with the relief of recovery of possession. Needless to say that the decree for specific performance need not be interconnected with this suit for the reason here the Court only considers the title of the person and the recovery of possession and if that title is lost by decree for specific performance it goes without saying that he will not be entitled to the entire relief. With these observations, this writ petition is disposed of. M.N. KRISHNAN, JUDGE. ul/-