IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 OP(C).No. 3008 of 2011(O) -------------------------------------- PETITIONER ------------------- 1. SHAJU, S/O.DAMODARAN, MENATH HOUSE, THANISSERY DESOM, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. SUDEEP, AGED 47 YEARS, S/O.DAMODARAN, MENATH HOUSE, THANISSERY DESOM, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENT(S): ------------------------- VIKRAMAN, S/O.MENATH KRISHNAN, THANISSERY DESOM, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR, PIN-680701. R1 BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.RAVI K.PARIYARATH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss APPENDIX PETITIONER(S) EXHIBITS P1:- COPY OF THE PLAINT IN OS.1976/206 OF THE MUNSIFF COURT IRINJALAKUDA. P2:- COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM FILED BY THE PETITIONER. P3:- COPY OF THE PLAINT IN OS.1355/2010 OF MUNSIFF COURT IRINJALAKUDA. P4:- COPY OF THE AMENDMENT PETITION IA.2381/2011 DATED 4/7/2011 WITH THE AFFIDAVIT. P5:- COPY OF THE OBJECTION IN IA.2381/2011 DATED 27/7/2011. P6:-COPY OF THE ORDER OF THE MUNSIFF COURT , IRINJALAKUDA IN IA.2381/2011 DATED 10/8/2011. RESPONDENTS' EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3008 of 2011 ==================================== Dated this the 01st day of December, 2011 J U D G M E N T Exhibit P6, order dated 10.08.2011 on I.A. No.2381 of 2011 in O.S. No.1976 of 2006 of the court of learned Additional Munsiff, Irinjalakuda is under challenge. Petitioners sought amendment of written statement and counter claim which leaned Munsiff, accepting objection of respondent-plaintiff disallowed holding that in the written statement and counter claim filed on 07.06.2007 there is no whisper about the matter sought to be incorporated by amendment and that proposed amendment filed after five years of filing the suit, if allowed would introduce material pleas totally different from the one on record and that too, at a belated stage. 2. Learned Senior Advocate appearing for petitioners contended that having regard to the circumstances request for amendment of written statement and counter claim ought to have been allowed. Learned Senior Advocate referred me to the various circumstances leading to petitioners filing Ext.P4, application for amendment. 3. Learned counsel for respondent contended that there is no bona fides in the application in that what is sought to be O.P(C) No.3008 of 2011 -: 2 :- incorporated by amendment are matters which transpired much prior to the filing of the suit and the counter claim. But neither in the written statement nor in the counter claim originally filed there is any mention about the readjustment now sought to be pleaded, in the year, 2010 petitioner filed O.S. No.1335 of 2010 pleading the readjustment now sought to be incorporated and the attempt is only to make the counter claim in tune with averments in the plaint in O.S. No.1335 of 2010. 4. Respondent-plaintiff claimed title over 71 cents described in the schedule to O.S. No.1976 of 2006. He claimed that as per partition deed No.1180 of 1963 he was allotted the said property and though in the partition deed the extent of property referred to is only as 56.6 cents, the extent of property comprised in the boundaries described in the partition deed as allotted to the respondent is 71 cents on measurement. Hence he claimed title and possession of the said 71 cents, wanted a declaration to that effect and a decree for prohibitory injunction. 5. Contention of petitioners including what is stated in Ext.P4, application for amendment of written statement and counter claim is that property including the suit property originally belonged to Krishnan, father of respondent, Damodaran (predecessor-in-interest of petitioners), Sreedharan, Ganesan, O.P(C) No.3008 of 2011 -: 3 :- etc., and while so, the entire properties were partitioned as per partition deed No.1180 of 1963. As per that partition, 61 cents was allotted to Damodaran (predecessor-in-interest of petitioners) as D schedule item No.1 while 1.06 acres on the north-west of the said 61 cents was allotted to the respondent and Ganesan @ Madhavan jointly. Respondent and the said Ganesan effected partition of the said 1.06 acres as per document No.742 of 1971. Accordingly Ganesan was allotted 49.5 cents and respondent was allotted 56.5 cents on the north of the 49.5 cents. Property of Sreedharan – 56 cents allotted as per partition deed No.1180 of 1963 is situated on the further north of property of respondent (56.5 cents allotted as per partition deed No.742/1971). It is the further contention of petitioners that 49.5 cents allotted to Ganesan is situated on the north-west of 61 cents allotted to their predecessor-in-interest (Damodaran) as D schedule as per partition deed No.1180 of 1963. According to the petitioners there were no well defined boundaries though properties were partitioned as per the above said document. But parties were in possession of the extent of land allotted to them. Later parties mutually agreed for a readjustment and as per that readjustment 14.760 cents on the north of 61 cents allotted to Damodaran (predecessor-in-interest of petitioners) was to be given to the O.P(C) No.3008 of 2011 -: 4 :- petitioners. The said 14.760 cents is situated on the east of 56.5 cents which was in the possession of respondent by virtue of partition deed No.1183 of 1963 and document No.742 of 1971. As per the readjustment petitioners were to release their right, title, interest and possession of 42.875 cents on the north-western portion of property of Ganesan. Though a readjustment of property was thus effected and parties took possession of the respective portions accordingly, there was no document executed in respect of the readjustment. On 11.11.2006 (before institution of O.S. No.1976/2006) respondent allegedly trespassed into a portion of the 14.760 cents given to the petitioners in the readjustment and constructed a foundation. In the written statement and counter claim petitioners prayed for a decree for mandatory injunction to direct the respondent to remove the construction falling in the 14.760 cents which was scheduled in the counter claim. 6. Respondent filed replication in answer to the counter claim. While so, petitioners filed O.S. No.1335 of 2010 in the same court impleading all the parties and claiming right over properties referred to therein based on partition deed No.1180 of 1963 as well as readjustment which according to the petitioners took place later. In O.S. No.1335 of 2010 the A schedule is 61 O.P(C) No.3008 of 2011 -: 5 :- cents which petitioners claimed was allotted to their predecessor- in-interest as D schedule as per partition deed No.1180 of 1963. Plaint B schedule is the 42.875 cents which according to the petitioners they were to release in favour of Ganesan. Plaint C schedule is the 14.760 cents which petitioners claimed that as per the readjustment they got from the respondent and which is situated on the north of 61 cents referred to in plaint A schedule. 7. Now the question is whether amendment of counter claim as requested for in Ext.P4, application is to be allowed. It is not disputed that request for amendment was made before commencement of recording evidence in the case. It is also not disputed that whatever be the merit of it, petitioners have filed O.S. No.1335 of 2010 claiming readjustment referred to above and sought to be incorporated by the amendment in the counter claim. In that view of the matter I am of the view that it was appropriate that petitioners were permitted to amend Ext.P2, counter claim as sought for in Ext.P4, application incorporating readjustment they claimed and title and possession they claimed in respect of 14.760 cents. I find from Ext.P4 that apart from incorporating the plea of readjustment in the counter claim, relief portion of the counter claim is also sought to be amended accordingly. O.P(C) No.3008 of 2011 -: 6 :- 8. Purpose of allowing amendment is to help the court adjudicate on the real controversy between parties. I stated that though not in the counter claim and written statement in O.S. No.1976 of 2006, petitioners have already pleaded readjustment and relief based on that readjustment in O.S. No.1335 of 2010. In that view of the matter I am not inclined to think that attempt of petitioners is to introduce an entirely different case which is in any way contradictory to the plea already made in the written statement and counter claim. I am also unable to accept the contention that amendment if allowed would alter the nature and character of the suit. In the circumstances I am inclined to interfere with the order passed by the learned Munsiff. Original Petition is allowed. Exhibit P6, order is set aside and I.A. No.2381 of 2011 in O.S. No.1976 of 2006 will stand allowed. Petitioners shall carry out the amendment within two weeks from the date on which a copy of this judgment is received in the trial court. Needless to say that respondent will get opportunity to file additional replication in answer to the amended counter claim. THOMAS P. JOSEPH, JUDGE. vsv