IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 OP(C).No. 640 of 2010(O) ------------------------ AGAINST THE ORDER IN IA.1398/2010 IN OS.62/2008 of MUNSIFF COURT, KODUNGALLUR .................... PETITIONER: ------------------------------ SUNDARAN, S/O.KOTTUKKAL KUNJIPARAN, EDATHIRUTHY VILLAGE, PAINNUR DESOM, KODUNGALLUR THALUK. BY ADV. SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN RESPONDENT: --------------- 1. MOHANAN, S/O.KOTTUKKAL MAMMUNNI, EDATHIRUTHY VILLAGE, PAINNUR DESOM,KODUNGALLUR TALUK-690053 2. NISHI, W/O.MOHANAN,KOTTUKKAL, EDATHIRUTHY VILLAGE, PAINNUR DESOM,KODUNGALLUR TALUK.690053 3. RATNAKARAN, S/O.KOTTUKKAL MAMMUNNI, EDATHIRUTHY VILLAGE, PAINNUR DESOM, KODUNGALLUR TALUK.690053 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.640 of 2010 --------------------------------------- Dated this 12th day of November, 2010 JUDGMENT Plaintiff No.2 in O.S.No.62 of 2008 of the court of learned Munsiff, Kodungallur is the petitioner before me. He, along with plaintiff No.1 filed the suit for prohibitory injunction to restrain respondents/defendants from trespassing into the plaint schedule property, opening up a new way, passing through it or committing waste therein. Respondents filed written statement and counter claim on 24-05-2008 contending that they have a right of way through the suit property in view of recitals in partition deed No.942 of 1954. They prayed for a decree for prohibitory injunction against petitioner and plaintiff No.1 causing obstruction to their user of the pathway. On 31-07-2010 petitioner and plaintiff No.1 filed Ext.P3, application for amendment of plaint to state about the recitals regarding right of access in partition deed No.942 of 1954, that there is no way through the suit property and that recently respondents constructed a way from the public road on the east along southern side of the suit property and through the property of one Devadasan for access to the property of respondents. The O.P(C).No.640 of 2010 : 2 : application was opposed by the respondents. Learned Munsiff vide Ext.P5, order dismissed Ext.P3, application observing that the application is highly belated and filed only after the case is included for trial in the list. It is contended that for a proper adjudication of the dispute the amendment prayed for is necessary. 2. The suit was instituted in the year 2008 and as aforesaid, written statement and counter claim were filed on 24-05-2008. Ext.P3, application came only on 31-7-2010. It is not disputed that in the plaint, petitioner and plaintiff No.1 contended that there is no way through the suit property and that respondents have no right to pass through the property. Now amendment sought for is to state about recitals in partition deed No.942 of 1954 in answer to the counter claim of respondents. Regarding the counter claim it is admitted by petitioner that himself and plaintiff No.1 have filed a replication taking up appropriate defence. If that be so, answer to the counter claim is contained in the replication. Yet another aspect is that petitioner and plaintiff No.1 wanted to incorporate in the plaint by amendment that recently respondents have constructed another way for access to their property but, I must bear in mind that O.P(C).No.640 of 2010 : 3 : what respondents have prayed for in the counter claim is a right of easement by way of grant. It is seen that application is highly belated and was made only after the case was included for trial in the list. In the circumstances stated I do not find reason to interfere with the impugned order. As the law provides it is open to the petitioner and plaintiff No.1 to resist counter claim of respondents with the pleadings made in the replication. I also make it clear that dismissal of this petition will not affect right, if any of petitioner and plaintiff No.1 to challenge, if it is found necessary, correctness of Ext.P5, order in an appeal that may be preferred against judgment and decree of the trial court. With the above observation this petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-