IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 35538 of 2008(E) -------------------------- OS.280/2003 of MUNSIFF'S COURT,KAYAMKULAM .................... PETITIONER(S): ------------------------ 1. HARIDASAN, S/O.KOCHUNANU, THARAL KIZHAKKATHIL @ HARISH BHAVAN, KAPPIL WEST MURI, KRISHNAPURAM VILLAGE. 2. RUGMINI, W/O.HARIDASAN, THARAL KIZHAKKATHIL @ HARISH BHAVAN, KAPPIL WEST MURI, KRISHNAPURAM VILLAGE. BY ADV. MR.GEORGE VARGHESE(PERUMPALLIKUTTIYIL), MR.A.R.DILEEP, SMT.SURYA SASI. RESPONDENT(S): --------------------------- 1. B.SUDARSHANAN, S/O.MANI, THARAL VADAKKATHIL, KAPPIL WEST MURI, KRISHNAPURAM VILLAGE. 2. SEEMA, W/O.B.SUDARSHANAN, THARAL VADAKKATHIL, KAPPIL WEST MURI, KRISHNAPURAM VILLAGE. R1 &R2 BY ADVS. MR.R.RAJASEKHARAN PILLAI, SMT.SABINA JAYAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.35538/2008 E APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PLAINT IN O.S.NO.280 OF 2003 ON THE FILE OF THE COURT OF THE MUNSIFF, KAYAMKULAM. P2: COPY OF WRITTEN STATEMENT FILED BY THE RESPONDENTS. P3: COPY OF I.A.NO.986/07 ALONG WITH AFFIDAVIT. P4: COPY OF I.A.NO.1630/07 ALONG WITH THE AFFIDAVIT. P5: COPY OF I.A.NO.1631/07 ALONG WITH THE AFFIDAVIT. P6: COPY OF OBJECTION FILED BY THE RESPONDENTS. P7: COPY OF ORDER DTD. 11/11/2008 IN I.A.NO.1630 OF 2007 IN O.S.NO.280/03 OF THE COURT OF THE MUNSIFF, KAYAMKULAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.35538 OF 2008 -------------------------- Dated this the 30th day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Set aside Ext.P7 order dated 11/11/2008 of the Court of Munsiff, Kayamkulam, dismissing Ext.P4 application. ii) Allow I.A No.1630/2007 in O.S No.280/2003 on the file of the Court of Munsiff, Kayamkulam. iii) Direct the court below to consider and dispose of I.A No.1631/2007 in O.S No.280/2003 on the file of the Court of Munsiff, Kayamkulam. iv) Pass such other writ, direction or order as deemed fit. 2. Petitioners are the plaintiffs in O.S No.280 of 2003 on the file of Munsiff Court, Kayamkulam. Suit is for perpetual prohibitory W.P.(C).No.35538 OF 2008 Page numbers injunction, and the respondents are the defendants. After the case came up in the list for trial, petitioners/plaintiffs applied for amendment of the plaint seeking correction of some survey numbers and also the extent of land in the schedule description of the plaint property. That application was opposed to by the defendants filing objections. The learned Munsiff after hearing both sides dismissed the amendment application vide Ext.P7 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. 3. I heard the counsel on both sides. By allowing the amendment, no prejudice will be caused to the defendants and the amendment sought for related only to correction of survey numbers and W.P.(C).No.35538 OF 2008 Page numbers extent of the plaint property which was wrongly stated by mistake in the description of the plaint schedule, is the submission of the learned counsel for the petitioners/plaintiffs. On the other hand, learned counsel appearing for the defendants, inviting my attention to the reasons set out in Ext.P7 order, declining the amendment sought for by the plaintiffs contended that in view of the embargo under the proviso to Order 6 Rule 17 of the Code of Civil Procedure without satisfying the court that the amendment could not have been sought for earlier despite due diligence, the court has no jurisdiction to entertain the amendment application and as such the dismissal of the application does not warrant any interference in exercise of the visitorial jurisdiction vested with this court. Relying on “Vidyabai and others v Padmalatha and another” ((2009)2 SCC 409) the learned counsel for the respondents reinforced the argument canvassed W.P.(C).No.35538 OF 2008 Page numbers that the court lacks jurisdiction in the absence of satisfaction of the exception covered under the proviso to Order 6 Rule 17 of the Code of Civil Procedure. True, the proviso to Order 6 Rule 17 of the Code of Civil Procedure interdicts the court from allowing the amendment application without satisfaction that such amendment moved, after the commencement of trial, could not have been moved by a suit party earlier despite due diligence. Proviso has been incorporated by the amended Act to have a time limit for an early disposal of the litigation. But it has to be noted that Order 6 Rule 17 of Code of Civil Procedure itself contemplates of permitting amendments which are found necessary for resolving the real controversies arising for adjudication before the court. In examining the question whether the party by due diligence could have applied for earlier the human frailties and lapses deserve to be taken note W.P.(C).No.35538 OF 2008 Page numbers of. In the absence of wilful and culpable negligence, it may not be proper to conclude that there was lack of due diligence. After all pleadings are handworks of counsel, and a party seeking the assistance of a counsel to vindicate his legal rights may notice the defects in his pleading only at the stage of trial. That also has to be taken by the court in examining the question whether the proposed amendment is to be allowed or not. The court as instrumentality of justice cannot decide applications technically or mechanically. No circumstance whatsoever has been shown that by allowing the amendment any prejudice will be caused to the defendants. True, the plaintiffs if vigilant, could have moved the amendment at an earlier point of time. The application for amendment belatedly filed could be allowed on terms compensating the injury, if any, to be suffered by the respondents/defendants. So W.P.(C).No.35538 OF 2008 Page numbers much so, taking note of the proposed amendment sought for, correction of the survey numbers and also the extent in the plaint schedule property, it is ordered that Ext.P7 order shall stand set aside and the amendment application of the plaintiffs allowed subject to payment of Rs.750/-(Rupees Seven hundred and fifty only) as cost to the respondents. Cost ordered shall be paid to the counsel appearing for the respondents before this court within two weeks from the date of this order and a memo filed on or before 19/10/2009. Writ petition is disposed as indicated above. Post for report on 21/10/2009. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv