IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 WP(C).No. 32171 of 2009(O) -------------------------- AGAINST THE ORDER DATED 08/09/2009 IN IA/1096/2009 IN OS.31/2009 of MUNSIFF COURT, PAYYANNUR .................... PETITIONER(S): --------------- SOOPIYEDATH PAZHAYAPURAYIL MUHAMMEDALI AGED 60 YEARS, S/O KUNHAYISUMMA PAYYANNUR AMSOM, KOKKANISSERY DESOM THAYATHUVAYAL, THALIPARAMBA TALUK KANNUR DISTRICT BY ADV. SRI.M.SASINDRAN RESPONDENT(S): --------------- SOOPIYEDATH PAZHAYAPURAYIL KADEEJA AGED 50 YEARS, D/O KUNHAYISUMMA PAYYANNUR AMSOM, KOKKANISSERY DESOM THAYATHUVAYAL, THALIPARAMBA TALUK KANNUR DISTRICT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.32171 OF 2009 -------------------------- Dated this the 11th day of November 2009 ------------------------------------- JUDGMENT Petitioner is the defendant in O.S No. 31 of 2009 on the file Munsiff Court, Payyannur. Suit is for declaration of the right of easement and injunction, and the respondent is the plaintiff. Resisting the suit claim, the petitioner/defendant filed a written statement, in which, among other contentions, disputing the claim of prescriptive easement canvassed by the respondent/plaintiff over a way alleged to be running through his property the defendant contended that during the pendency of the suit, pursuant to mediation, a way had been provided having a width of 8 feet through his property and the boundary wall excluding that way was also constructed by the plaintiff. Plaintiff had agreed to withdraw the suit in view of the mediation and the steps taken thereto, but, he failed to honour that commitment was the case W.P.(C).No.32171 OF 2009 Page numbers pleaded in his written statement. However, later, the defendant sought for filing an additional written statement to raise additional contentions. In the additional written statement, it was canvassed that under the mediation, plaintiff had surrendered two cents of her property in view of the area provided in his property as the pathway. On such surrender of two cents property from the plaintiff, boundary wall had been put up taking such property by the defendant was the case presented in his additional written statement. In the previous written statement, surrender of two cents by the plaintiff in lieu of the pathway provided through his property was omitted to be stated was the reason canvassed by the defendant for its acceptance. Reception of the additional written statement was challenged by the plaintiff filing objections. Learned Munsiff after hearing both sides declined to receive the additional written statement filed by the defendant. Ext.P5 is the order passed by the learned Munsiff W.P.(C).No.32171 OF 2009 Page numbers dismissing the application moved by the defendant for acceptance of his additional written statement. Propriety and correctness of Ext.P5 order is challenged in the writ petition. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary, and hence it is dispensed with. Perusing Ext.P5 order with reference to Ext.P2 written statement previously filed by the defendant and also Ext.P4 additional written statement, I find there is no impropriety or illegality in the order passed by the learned Munsiff declining to receive the additional written statement. From the submissions made by the counsel, it is seen that at no point of time, the petitioner/defendant had applied for taking out a commission to substantiate give credence to the contentions canvassed in his additional written statement that any damage W.P.(C).No.32171 OF 2009 Page numbers to his boundary wall or property was caused by any act done by the plaintiff, whether it be before or after the alleged mediation made by some third parties. The case advanced by the defendant that the surrender of two cents by the plaintiff and also construction of a boundary wall taking in such property was omitted to be given expression to in his previous written statement though the mediation and the carving out the pathway through his property had been narrated is hardly suspectable. In the given facts of the case I find the court below was justified in holding that the additional written statement cannot be received as no sufficient reason for its acceptance has been made out by the defendant. Writ petition lacks merit and it is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv