IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 4424 of 2009(B) ------------------------------------- OS.91/2008 of MUNSIFF COURT, VADAKARA .................... PETITIONER/DEFENDANT ------------------------------------- C.K. DHARMADAS, AGED 59 YEARS, S/O.KELOTH KRISHNAN (LATE),RESIDING AT "SAI KRISHNA", PANNAMPARA ROAD, VALLIKKUNNU, KANNUR-4. BY ADV. MR.C.VALSALAN MR.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT/ PLAINTIFF ------------------------------------- PUSHPAVALLY. C.K, AGED 60 YEARS, D/O.KRISHNAN, KOLLOMPADIKKAL, KUNNUMMAL AMSOM, (P.O)VATTOLY, (VIA) KAKKOTTIL, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. MR.DEVIDAS.U.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 4424/2009-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S. NO.91 OF 2008. EXT.P2: COPY OF THE WRITTEN STATEMENT IN O.S. NO.91 OF 2008. EXT.P3: COPY OF THE PLAN AND REPORT BY THE ADVOCATE COMMISSIONER O.S. NO.91 OF 2008. EXT.P4: COPY OF THE AFFIDAVIT FILED ALONGWITH I.A. NO.1065 OF 2008. EXT.P5: COPY OF THE COUNTER IN I.A. NO.1065 OF 2008. EXT.P6: COPY OF THE AFFIDAVIT FILED BY THE PLAINTIFF. EXT.P7: COPY OF THE AFFIDAVIT FILED BY THE RESPONDENT. EXT.P8: COPY OF THE AFFIDAVIT FILED BY THE PLAINTIFF ALONGWITH I.A. NO.97 OF 2008. EXT.P8(A): COPY OF THE OBJECTION FILED BY THE DEFENDANT/PETITIONER IN I.A. NO.97 OF 2008. EXT.P9: COPY OF THE AFFIDAVIT FILED BY THE PLAINTIFF ALONGWITH I.A. NO.98 OF 2008. EXT.P9(A): COPY OF THE OBJECTION IN I.A. NO.98 OF 2008. EXT.P10: COPY OF THE ORDER DATED 30/01/2009 IN I.A. NO.97 OF 2009. EXT.P11: COPY OF THE ORDER DATED 30/01/2009 IN I.A. NO.98 OF 2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.4424 OF 2009 (B) ----------------------------------- Dated this the 9th day of October, 2009 J U D G M E N T The defendants in O.S.No.91 of 2008 on the file of the Munsiff Court, Vadakara has filed this writ petition seeking the following reliefs: i. to set aside the orders dated 30.1.2009 in I.A.No.97 of 2009 and I.A.No.98 of 2009 in O.S.No.91 of 2008, by way of Exts.P10 and P11. ii. to declare that the suo motu reopening of the suit on 1.1.2009 without pronouncing judgment on the available evidence on record is illegal. iii. to direct the Munsiff of Vadakara to pronounce the judgment in O.S.No.91 of 2008 pending before it on the basis of the available records and evidence before it. 2. Suit is one for perpetual prohibitory injunction, and the respondent is the plaintiff. Exts.P10 and P11 are the WPC.4424/09 2 orders challenged in the writ petition. By Ext.P10 order, the court below allowed the application for amendment moved by the plaintiff, and by Ext.P11 order, permitted both sides to have a fresh commission report and plan by filing respective work memos stating the details to be ascertained and on payment of the batta to the Commissioner. 3. Admitted facts are that a Commissioner was deputed by the court earlier, and he filed a report. The defendant filed objections to that report. The court thereupon passed an order directing the plaintiff to pay batta for collection of a fresh report. At that stage, the plaintiff who had no objection to that report, did not want to pay the batta for having a fresh report. Thereafter the case was included in the list for trial and evidence was recorded. After the case was posted for judgment, the court below reopened the case and ordered for remitting the commission report with direction to the defendant to take fresh steps for obtaining a fresh commission report. The defendant was not prepared to take a fresh report as he was satisfied with the evidence already collected in the WPC.4424/09 3 case. The plaintiff moved an application for remitting the batta alongwith another application for amendment of the plaint. Both the applications were allowed by the court under the orders referred to above. 4. So far as the challenge against Ext.P10 order, it is seen, the amendment sought for by the plaintiff was only some corrections in the measurement in the plaint property. Such amendment was sought for after commencement of the trial, is canvassed by the defendant to contend that in view of the interdiction under the proviso to Order VI Rule 17 of the Code of Civil Procedure, the court could not have allowed the amendment. On technical objections, an amendment sought for cannot be refused unless it is shown that there was culpable laches or negligence on the part of the party in seeking the amendment, or such amendment would cause prejudice or hardship to the opposite party, which cannot be compensated in terms of money or it is likely to change the character of the suit or proceedings. So much so, I do not find any merit in the challenge raised against Ext.P10 order, by WPC.4424/09 4 which the court below allowed the amendment application of the plaintiff. 5. So far as the challenge raised against Ext.P11 order, by which the court allowed both parties to file their work memos for ascertaining the matters required for adjudication of the suit, it is submitted by the learned counsel for the petitioner that previously an opportunity had been extended to the plaintiff and that having been not availed, his request for payment of batta at a later stage is barred by resjudicata. I do not find any merit in the submission. The court has set aside the commission report and directed the parties to take steps for ascertaining of certain matters by appointing a fresh commission. The parties may be bound by the principles of resjudicata, but, so far as the adjudication of the disputes, at any stage of the suit, where the court is satisfied that the report filed, is not sufficient to enter a definite finding, it can issue direction to the parties for collecting a fresh report, after setting aside the previous report, which has been found not satisfactory. Unless it is shown that the order so passed of the WPC.4424/09 5 court is irregular or perverse, no party can impeach it for the reason that the other party has not taken fresh steps earlier for appointment of a fresh commission. So much so, I do not find any merit in the challenges raised against Ext.P11 order as well. Writ petition is dismissed. S.S.SATHEESACHANDRAN JUDGE prp