IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 WP(C).No. 34713 of 2005() ------------------------------------- OS.122/2004 of MUNSIFF COURT, KOYILANDY .................... PETITIONER(S): ----------------------- 1. THADATHIL KALIYAMBATH NALINAKSHI AMMA, AGED 64 YEARS, D/O.SREEDEVIKUTTY AMMA, RESIDING AT THADATHIL, PANTHALAYANI AMSOM DESOM, KOYILANDY. 2. P.CHANDRASEKHARAN NAIR, AGED 78 YEARS, S/O.KONTHU NAIR, RESIDING AT THADATHIL, PANTHALAYANI AMSOM DESOM, KOYILANDY. BY ADV. SRI.B.KRISHNAN, SRI.R.PARTHASARATHY, SRI.P.T.MOHANKUMAR. RESPONDENT(S): ------------------------- 1. KIZHAKKE THADATHIL KARTHIAYANI AMMA, AGED 72 EYARS, D/O.KALLYANI AMMA, PANTHALAYANI AMSOM DESOM. KOYILANDY. 2. GANGADHARAN NAIR, AGED 56 YEARS, PANTHALAYANI AMSOM, DESOM, KOYILANDY. R1 & R2 BY ADV. SRI.B.V.JOY SANKER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34713 of 2005 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT FILED BY THE PETITIONER TO THE RESPONDENTS BEFORE THE MUNSIFF COURT, KOYILANDY DATED 23/07/2004. EXT.P2: COPY OF THE REPORT AND SKETCH DATED 22/07/2005. EXT.P3: COPY OF THE PETITION FOR AMENDING THE PLAINT, DATED 22/08/2005. EXT.P4: COPY OF THE ORDER ISSUED BY MUNSIFF'S COURT, KOYILANDY DATED 04/11/2005. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.34713 Of 2005 ---------------------- Dated this the 11th day of November, 2010. J U D G M E N T Petitioners are the plaintiffs in O.S.No.122 of 2004 on the file of the Munsiff Court, Koilandy. Suit was filed for permanent prohibitory injunction. The defendants contended that the plaint B schedule road is not a private way. The defendants relied on the written statement filed by the present plaintiffs as defendants in O.S.No.292 of 1986. It is pointed out that the present plaintiffs in the earlier suit contended that the members of the public were also using the plaint B schedule road. It is pleaded in the present case that plaint B schedule road is a private way. 2. Amendment application was necessitated due to the defence taken by the defendants in the suit. It is averred in Ext.P3 application for amendment that the disputed way was also used by neighbouring people as well. But, after the construction of an irrigation canal which intersected the said way, it is said that nobody could use the disputed way beyond the said canal. It is also said that there is no means of crossing or traversing the said canal on that point. Therefore, the plaint B schedule way was having a dead end. In the circumstances, it is said that the W.P.(C).No.34713 Of 2005 ::2:: plaintiffs contended in this suit that B schedule way is a private road. It is also stated by the plaintiff in the affidavit filed in support of the petition for amendment that from the contentions raised by the defendants in the written statement, it appears, they are trying to make out a case that the plaintiffs have taken an inconsistent plea regarding the plaint B schedule road. Therefore, it has come necessary to explain the circumstances under which it is pleaded in the amendment that plaint B schedule road is a private way. 3. I have perused the application for amendment. The amendment is necessitated due to the statement in the written statement regarding the stand of the plaintiffs in the earlier suit. I think the amendment application was filed only to explain the correct stand of the plaintiff in the earlier suit as well as the in the present suit. The finding of the court that the amendment will change the nature and character of the suit and that the defendants will loose a valid defence are not sustainable on facts or on law. The court below should have allowed the prayer for amendment. In the nature of the contentions of the parties and pleadings, in fact, it has become necessary to explain the W.P.(C).No.34713 Of 2005 ::3:: circumstances under which the appropriate pleadings are made in the earlier suit and in the present suit. The defendants in the suit can file additional written statement denying the pleadings inserted by way of amendment. The amendment sought to be inserted in the plaint is true or not is a matter for the court to decide at the time of trial. In the application for amendment it is also stated that the defendants have trespassed into a strip of land obliterating its eastern boundary of the said way and that they are bound to restore the original width of the way surrendering the trespassed portion. The plaintiff also sought for amendment of the prayer portion as well. In the above said circumstances, I am of the view that Ext.P4 order is unsustainable in law. Ext.P4 order is set aside. Amendment petition is allowed. The applicant shall carry out the amendment within three weeks from today. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-