IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WP(C).NO. 22583 OF 2010(O) ----------------------------------------- OS.558/2006 OF M.C.,VADAKKANCHERRY PETITIONER(S): ---------------------- MOIDEEN, S/O.KUNNATH MOHAMMEDKUTTY, RESIDING AT MANALADI PARAPPURATH, ATTUR VILLGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.THIYYANNOOR RAMAKRISHNAN SRI.ARUN KUMAR.P SMT.AMBIKA RADHAKRISHNAN RESPONDENT(S): -------------------------- 1. KUNJUMOL, W/O.LATE NAYATTUVALAPPIL IDRU KILLIMANGALAM VILALGE, TALAPPILLY TALUK PIN-680591. 2. BAVA @ MUHAMMEDKUTTY, S/O.NAYATUVALAPPIL IDRU, KILLIMANGALAM VILLAGE, THALAPPILLY TALUK PIN - 680591. 3. ABDULLA, S/O. NAYATTUVALAPPIL IDRU, KILLIMANGALAM VILLAGE, TALAPPILLY TALUK, PIN-680591. 4. MUSTHAFFA, S/O. NAYATTUVALAPPIL IDRU KILLIMANGALAM VILLGE, TALAPPILLY TALUK PIN-680591. 5. HAMSAKUTTY, S/O.NAYATTUVALAPPIL IDRU KILLIMANGALAM VILLGE, TALAPPILLY TALUK PIN - 680591. 6. IBRAHI, S/O. NAYATTUVALAPPIL IDRU KILLIMANGALAM VILLGE, TALAPPILLY TALUK PIN- 680591. 7. MOIDENKUTTY, S/O.NAYTATTUVALAPPIL IDRU KILLIMANGALAM VILLAGE, TALAPPILLY TALUK PIN - 680591. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.22583 of 2010 ==================================== Dated this the 20th day of July, 2010 J U D G M E N T Writ Petition is at the instance of defendant in O.S.No.558 of 2006 of the court of learned Munsiff, Wadakkancherry. That is a suit filed by respondents for recovery of possession of one item being part of one acre in Sy.No.810/24 over which they claimed title by inheritance from their predecessor-in-interest. That suit was resisted by petitioner contending that respondents have no right, title or interest over the property sought to be recovered. Advocate Commissioner inspected the property and submitted report and plan. Commissioner reported that apart from property referred to in the original plaint, two items also allegedly belonging to respondent No.5 as per his document of title are in the possession of petitioner and submitted report accordingly. Those items are plots C and D in the plaint. Plot C is 5.20/1000 in extent in Sy.No.810/1/22 and plot D is 13.250 cents in extent in Sy.No.810/1/25 which respondent No.5 claimed belonged to him as per documents of title referred to in the application for amendment. They also stated that it is only when Advocate Commissioner submitted report and plan they learnt that the two W.P(C) No.22583 of 2010 -: 2 :- items belonging to them are in the possession and enjoyment of petitioner. Accordingly they wanted to amend the plaint incorporating the said items in the plaint schedule and seeking recovery of possession. That application was opposed by petitioner stating that if allowed it would alter the character and nature of the suit. It is also the contention that attempt of respondent No.5 is to avoid binding nature of decision in A.S. No.194 of 1994 of the court of learned District Judge, Thrissur. Learned counsel for petitioner contends that court below in the above circumstances was not justified in allowing amendment. According to the learned counsel by amendment new claims are sought to be incorporated and that would affect nature and character of the suit. It will also work out injustice to the petitioner, it is argued. 2. Position of law is clear that all amendments necessary for adjudication of the disputes between parties are to be allowed except when it would cause prejudice to the opposite party. I am not persuaded to think that amendment would change nature and character of the suit for the reason that along with the property already stated in the plaint, respondents wanted recovery of possession of two other items also from the petitioner though according to them those items belonged to respondent No.5 and W.P(C) No.22583 of 2010 -: 3 :- are his self acquisition. Mere fact that property described in the plaint schedule originally is claimed by the respondents by devolution while the two items sought to be incorporated by amendment belong to respondent No.5 as per documents of title claimed by him. Respondents have stated that it is from the report and plan of the Advocate Commissioner that they noticed about the two items being in the possession of petitioner. In the circumstances court below cannot be found fault with for allowing amendment. Allowing or disallowing amendment is largely within the discretion of trial court and except when the discretion is exercised in a perverse or illegal manner this Court is not required to interfere under Article 227 of the Constitution. Trial court has exercised the discretion in favour of allowing amendment. It is open to the petitioner to challenge prayer for recovery possession of newly added items on whatever grounds as are available to him. With the above observation Writ Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv