IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 OP(C).No. 269 of 2010(O) ------------------------ IA 2782/2009 IN OS .56/2007 of PRINCIPAL MUNSIFF COURT-II, KOZHIKODE .................... PETITIONER/PLAINTIFF: ----------------------------------------- M/S.T.P.BRICKS AND POTTERIES, REPRESENTED BY MANAGING PARTNER T.P.NOUSHAD, S/O.ABDRURAHIMAN, AGED 43 YEARS, CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH RESPONDENT(S): DEFENDATNS: -------------------------- 1. NELLOLI SAINABA BEEVI, W/O.MAMMAD KOYA, AGED 73 YEARS, NELLOLI HOUSE, POST FEROKE, CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK. 2. ALIKKAM VEETTIL SHAHUL HAMEED, S/O.ABDULLA KOYA, AGED 43 YEARS, NELLOLI HOUSE, POST FEROKE, CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK. 3. PUTHIYA PURAYIL HAFEESA, W/O.SHAHUL HAMEED, AGED 33 YEARS, NELLOLI HOUSE, POST FEROKE, CHERUVANNUR AMSOM AND DESOM. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.269 of 2010 -------------------------------------- Dated this the 11th day of October, 2010. JUDGMENT Plaintiff in O.S.No.56 of 2007 of the court of learned Principal Munsiff-II, Kozhikode is the petitioner before me challenging Ext.P5, order dismissing I.A.No.2782 of 2009 and refusing to permit petitioners amend the plaint to incorporate a prayer for recovery of possession. Suit as originally filed was for a decree for prohibitory injunction against trespass. Respondents/defendants filed written statement on 02.06.2007 contending that petitioners have no right or possession over the suit property and that a major portion of the suit property belongs to and is in their possession. Even before that on 15.02.2007 and 07.04.2007 Advocate Commissioner had inspected the property and submitted a report to the effect that portions of the suit property are in the possession of respondents. Case was posted on 02.07.2009 for trial. On the previous day petitioner filed I.A.No.2782 of 2009 for amendment of plaint to incorporate a prayer for recovery of possession alleging that respondents trespassed into the property (described as C schedule in the application for amendment) at a time when petitioner (partnership firm) was remaining closed. That petition was allowed by the learned Munsiff. Against that order, respondents filed W.P.(C) No.23211 of 2009. That petition was allowed as per judgment dated 15.06.2010 directing learned Munsiff to consider the application afresh after giving petitioner opportunity to file additional affidavit if any to comply with the proviso to Order VI Rule 17 of the Code of Civil Procedure (for short, “the Code”). Accordingly petitioner has filed additional affidavit stating that petitioner could OP(C) No.269/2010 2 not file application for amendment of plaint earlier since the person who represented petitioner was out of station for some time and due to financial difficulties petitioner could not function for some time. Petitioner learnt about the matter only when it contacted its counsel. Respondents countered the additional affidavit stating that the person who represented petitioner was in station and had taken part in other proceedings. To prove that, they produced Exts.B1 to B5. Learned Munsiff considered evidence and came to conclusion that petitioner was not diligent in conducting the case and dismissed the application. That order is under challenge. Learned counsel contends that by the amendment nature and character of the suit will not be changed and notwithstanding the lapse of time, to avoid multiplicity of suits court below ought to have allowed the request. Learned counsel placed reliance on the decision of the Supreme Court in Usha Devi v. Rijwan Ahamd[(2008) 3 SCC 717]. 2. No doubt the purpose of allowing amendment is to avoid multiplicity of suits and as far as possible it is to be granted also. In the case on hand respondents filed written statement on 02.06.2007 claiming possession of the property and even before that, Advocate Commissioner had inspected the property on 15.02.2007 and 07.04.2007 and reported about possession of respondents. Case was listed on 02.07.2009 and on the previous day I.A.No.2782 of 2009 was filed with a prayer for recovery of possession alleging that respondents trespassed into the suit property. The explanation offered by petitioner for not filing the application in time is found to be not true by Exts.B1 to B5 which show that even during the relevant time the representative of OP(C) No.269/2010 3 petitioner was available at the spot. Moreover in this case the amendment sought relates to a thing prior to the institution of suit. Even according to the petitioner, trespass was prior to the suit. The Supreme Court in Alkapuri Cooperative Housing Society Limited v. Jayantibhai Naginbhai (Deceased) through LRs. [(2009) 3 SCC 467] has held that incorporating post suit cause of action is different from pre-suit causes of action. In that case the decision of the High Court reversing the order of the trial court was found to be unsustainable. The trial court in this case has exercised the discretion against petitioner. Prayer for recovery of possession sought to be raised by way of amendment may also involve limitation. No factual basis to overcome bar of limitation is laid in the plaint. In the circumstances I do not find reason to interfere with the order of learned Munsiff. It is open to the petitioner to pursue its remedy if any, for recovery of possession otherwise as provided under law. Petition is dismissed with the above observation. THOMAS P.JOSEPH, Judge. cks