IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 WP(C).No. 3199 of 2010(O) ------------------------------------- (I.A. NO. 1151/09 IN OS.NO.227/2008 OF MUNSIFF COURT,CHENGANNUR) .................... PETITIONER: ------------------- P.G.THOMAS, AGED 66 YEARS, S/O.GEEVARGHESE, THAZHONAYA PUTHUSSERIL VEETTIL, VANMAZHI MURI, PANDANADU VILLAGE, CHENGANNUR. BY ADV. MR.N.ASOK KUMAR. RESPONDENTS: ------------------------ 1. GOVERNMENT OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA. 2. TAHSILDAR, TALUK OFFICE, CHENGANNUR. 3. MATHEW, PAZHAYADATHU THEKKEKUTTU VEETTIL, VANMAZHI MURI, PANDANADU VILLAGE, CHENGANNUR. R3 BY ADVS. MR.RAJEEV V.KURUP, MR.ALEX.M.SCARIA, SMT.DEEPTHY S.NATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3199/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 227/08 OF M.C. CHENGANNUR. EXT.P.2: COPY OF THE WRITTEN STATEMENT FILED BY 2ND DEFENDANT IN O.S. 227/08 DTD. 10/02/09. EXT.P.3: COPY OF THE WRITTEN STATEMENT FILED BY 3RD DEFENDANT DTD. 31/10/08 IN O.S. 227/08. EXT.P.4: COPY OF THE PLAINT IN O.S. 96/08 OF M.C. CHENGANNUR DTD. 14/03/2008. EXT.P.5: COPY OF THE PETITION IN I.A. NO. 1151/09 IN O.S. 227/08 DTD. 06/08/2009. EXT.P.6: COPY OF THE ORDER IN I.A. 1151/09 IN O.S. 227/08 DTD. 04/11/2009 OF M.C. CHENGANNUR. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. ------------------------------------- WP(C) No.3199 of 2010-O ------------------------------------- Dated 19th March 2010 Judgment Aggrieved by the dismissal of the application for amendment of the plaint, the plaintiff before the Court below has come up with this Petition under Article 227 of the Constitution of India. 2. The plaintiff instituted OS No.227/08 before the Munsiff's Court, Chengannur, which is a suit for injunction simpliciter. Copy of the plaint in the suit is produced as Ext.P1. The second and third defendants filed separate written statements, copies of which are produced as Exts.P2 and P3. The third defendant had already filed a suit as OS No.96/08 before the Munsiff's Court, Chengannur. Copy of the plaint in the said suit is produced as Ext.P4. In Ext.P3, the third defendant has submitted that the petitioner herein has occupied some portion of his property. Therefore, it became WPC 3199/10 2 necessary for the petitioner to amend Ext.P1 for declaration of his right and possession over the property. So, he filed Ext.P5 (IA No.1151/09 in OS No.227/08) for amending Ext.P1 plaint. But, the Court below by Ext.P6 order dated 4.11.2009 dismissed the said application, holding that the amendment, if allowed, will change the character of the suit. It is the said order, that is assailed in this Petition. 3. The learned counsel for the petitioner pointed out that there is no question of changing the nature/character of the suit by allowing the amendment application. According to him, the amendment was absolutely necessary in view of the contention raised by the third defendant in the suit filed by him, which was only consequential. Therefore, he submits that the Court below ought to have allowed the amendment application. WPC 3199/10 3 4. The learned counsel for the respondent, on the other hand, submitted that the petitioner was aware of the pendency of the suit filed by the third defendant at the time of filing of OS No.227/08 and he ought to have incorporated his claim in the suit. 5. One cannot omit to note that the suit was one for injunction based on the possession of the plaintiff. As already stated, the third defendant in the suit filed by him has put forward a contention that a portion of his property is occupied by the petitioner herein. Therefore, the petitioner was constrained to file an application for amending the suit filed by him. One fails to understand how the character and nature of the suit is changed by allowing the amendment application. The suit was one based on possession. That remains ever after the amendment. It is difficult to accept the finding of the Court below that the amendment, if allowed, will change the character of the suit. The said WPC 3199/10 4 order is unsustainable. Accordingly, this Petition is allowed. Ext.P6 is set aside. Ext.P5 IA is allowed. The petitioner shall carry out the amendment proceedings within one month from today. P.BHAVADASAN, JUDGE sta WPC 3199/10 5