IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 WP(C).No. 21601 of 2008(V) -------------------------- OS.339/1990 of PRL.M.C.KOZHIKODE-I .................... PETITIONER(S): -------------------------- VENUGOPALAN KIDAVU, AGED 63 YEARS, S/O. LAKSHMI AMMA, 'SREEMUKHAM' P.O. CHELANOOR, KOZHIKODE BY ADV. MR.NIRMAL. S RESPONDENT(S): ---------------------------- 1. POKKALI PADMANABHAN,S/O. GOVINDAN, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK. ( D I E D) 2. THILOTHAMA, D/O. KUNHIKANARAN, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK . 3. VENUGOPALAN, H/O. THILOTHAMA THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK . 4. MEYANAMETHAL MOOTHARAN, S/O.THANIYAN, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK . 5. ELATHU METHAL KANDTHY, D/O.PARAYAMPARA, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK . 6. RAMACHANDRAN KIDAVU, S/O. LAKSHMI AMMA, 'SREEMUKHAM' P.O.CHELANOOR, KOZHIKODE. 7. GANGADHARAN KIDAVU, S/O. LAKSHMI AMMA, “SREEMUKHAM”, P.O.CHELANOOR, KOZHIKODE. Kss ..2/- ...2.... WPC.NO.21601/2008 V *ADDL.R8 TO R12 ARE IMPLEADED: R8. SURESH BABU, S/O.POKKALI PADMANABHAN, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK. R9. SWAMINATHAN, S/O.POKKALI PADMANABHAN, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK. R10. SUDHARATNAM, D/O.POKKALI PADMANABHAN, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK. R11. SREEDEVI, D/O. POKKALI PADMANABHAN, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK. R12. SANTHA, W/O. POKKALI PADMANABHAN, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK. (*ADDL.R8 TO R12 ARE IMPLEADED AS PER ORDER DTD. 12/08/2008 IN I.A.NO.10553/2008) R6 & R7 BY ADV. SMT.VEENA HARI ADLL.R8 TO R12 BY ADV.MRK.M.FIROZ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.21601/2008 V APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.339/1990 FILED BEFORE THE MUNSIFF'S COURT – I, KOZHIKODE DTD. 14/05/1990. P2: COPY OF THE DOCUMENT NO.1167/1979 EXECUTED ON 8/05/1979. P3: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.339/1990 BEFORE THE MUNSIFF'S COURT, KOZHIKODE DTD. 29/10/98. P4: COPY OF THE I.A.658/06 FILED BY THE PETITIONER FOR AMENDING THE WRITTEN STATEMENT DTD. 3/02/2006. P5: COPY OF THE COMMISSION REPORT IN O.S.339/90 SUBMITTED BY K.K.RAMAKRISHNAN, ADVOCATE BEFORE THE MUNSIFF'S COURT, KOZHIKODE DTD. 13/07/2004. P5(A): COPY OF THE PLAN. P6: COPY OF THE ADDL.WRITTEN STATEMENT FILED BEFORE THE MUNSIFF'S COURT, KOZHIKODE DTD. 25/03/2008. P7: COPY OF THE ORDER IN I.A.658/2006 INO.S.339/1990 DTD.1/07/08 OF THE PRINCIPAL MUNSIFF COURT I, KOZHIKODE. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 21601 OF 2008 V ```````````````````````````````````````````````````` Dated this the 8th day of July, 2009 J U D G M E N T The 7th defendant in OS.No.339/90 on the file of the Principal Munsiff, Kozhikode, has filed this writ petition. Suit was one for perpetual prohibitory injunction and the 1st respondent is the plaintiff. The 1st respondent passed away during the pendency of this writ petition, and his legal heirs have been impleaded as additional plaintiffs in the suit. The 5th and 6th defendants claim right of possession over a property having an extent of 1 acre and 41 3/4 cents which was obtained under a deed executed by the plaintiff(late). Ext.P2 is the copy of that deed. Later, these defendants moved an application for amending their written statement contending that the property covered by the deed as per the measurements shown was 2 acre and 43 cents but by mistake after showing the measurements the extent was shown as 1 acre and 41 3/4 cents. The amendment sought for was objected to by the plaintiff and after hearing both sides, the learned Munsiff disallowed the amendment. Ext.P7 is the copy of the order passed WPC.21601/08 : 2 : declining the amendment. Propriety and correctness of that order is challenged in the writ petition. 2. I heard the counsel on both sides. It is submitted by the counsel for the petition that the proposed amendment with respect to the extent of the land is in tune with the measurement shown in the schedule of the title deed and the extent stated was by a mistake in preparing and filing the written statement. That mistake in the deed was carried over and unless it is corrected, prejudice will be caused to these defendants. On the other hand, learned counsel for the plaintiff would contend that the extent of the property claimed by the defendant stated in the written statement is a specific admission as coming under section 58 of the Evidence Act and as such the defendants have no right to seek its withdrawal. These defendants have filed an additional written statement which was also received by the court, according to the learned counsel. That circumstance is also canvassed to contend that the proposed amendment for withdrawing of an admission in the written statement cannot be permitted and the order of the court below declining that amendment is proper, valid and correct. So on the facts presented, the question emerging for WPC.21601/08 : 3 : consideration is whether the extent of the land claimed by the defendants as shown in their written statements would constitute a judicial admission as contemplated under section 58 of the Evidence Act. If that proposition is accepted, then any mistake appearing in the pleading of any party cannot be corrected and then Order 6 Rule 17 CPC would be rendered nugatory and meaningless. The above Rule is essentially intended to provide an opportunity to seek correction of mistakes in the pleadings so that the actual controversy involved in the lis can be determined. The extent stated as 1 acre and 41 3/4 cents shown in Ext.P2 deed which admittedly was executed by the plaintiff(late) in favour of the defendants does not tally with the measurements specifically shown in that deed is not disputed. So the essential question is whether there was any mistake in the measurement or in the actual extent shown. Probably, such a mistake could have crept in the measurement also, and need not be in the extent shown. But in determining the issue raised for consideration at this stage when the defendant canvasses for correction of the extent stated in his written statement, it cannot be denied on the ground that the earlier statement constituted an admission. An admission can be WPC.21601/08 : 4 : shown to be wrong by the party who made it. Admissions are not conclusive, and no admission will confer title. Suit is one for injunction. The burden is on the plaintiff to prove his possession over the property scheduled in the plaint. It is admitted that now the schedule has been amended so as to claim a lesser extent than what was earlier stated in the plaint. If the contention pressed into service by the plaintiff to resist the claim of the defendant that the extent shown earlier constituted an admission, the plaintiff also could not have amended the schedule. Whatever amendments which are necessary for resolving the controversy arising in a lis if it does not cause prejudice or injury to the other side has to be permitted because in drafting of plaint or written statement, which is usually done by advocates, there is every chance of errors and mistakes creeping in and that should not be allowed to cause injury to the parties involved in the lis. If the advocate had taken care to examine Ext.P2 sale deed when the written statement was prepared and filed, the mistake could have been noticed. For that reason alone, the written statement filed showing a lesser extent, which does not reflect with the deed, the defendant cannot be denied an opportunity to correct his written WPC.21601/08 : 5 : statement. View expressed by the court below that the correction sought for by the defendant would amount to advancing of a new case is erroneous. No new case is sought to be introduced but only the description of the property made in tune with his deed. Amendment in the written statement has to be permitted as it is required to resolve the controversy involved in the suit. The arguments advanced by the learned counsel that an additional written statement is filed and so the amendment need not be allowed lacks merit because the defendant by his pleadings is not setting up a conflicting version. So setting aside Ext.P7 order, the amendment sought for by the defendant is allowed. The learned counsel for the plaintiff seeks permission to amend the plaint in view of the permission given to the defendant in the written statement. The plaintiff is free to amend the plaint if so advised, and also if provided by law. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. to Judge