IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 WP(C).No. 23883 of 2010(O) -------------------------- OS.357/2009 of MUNSIFF'S COURT, WADAKKANCHERRY .................... PETITIONER(S): ------------------------ 1. ABDULSALAM, S/O.ABDULKHADER HAJI, AGED 47 YEARS, PATHIPARAMBATH HOUSE, CHIYYARAM VILLAGE, TRISSUR TALUK. 2. SHAHEERA BHANU, AGED 38 YEARS, W/O.ABDULSALAM, PATHIPARAMBATH HOUSE, CHIYYARAM VILLAGE, TRISSUR TALUK. 3. MUHAMMED ASHARAF, S/O.ABDULSALAM, AGED 20 YEARS, PATHIPARAMBATH HOUSE, CHIYYARAM VILLAGE, TRISSUR TALUK. BY ADVS. SRI.K.M.JAMALUDHEEN, SMT.LATHA PRABHAKARAN. RESPONDENT(S): ---------------------------- 1. KALYANI, AGED 57 YEARS, D/O.KAKKALI RAMAN, VARAVOOR VILLAGE, THALAPPILLY TALUK, TRISSUR DISTRICT. 2. PARUKUTTY, D/O.KAKKALI RAMAN, VARAVOOR VILLAGE, THALAPPILLY TALUK, TRISSUR DISTRICT. 3. THOMAS, AGED 59 YEARS, S/O.PALAKKAL ABRAHAM, ENKAKA VILLAGE, THALAPPILLY TALUK, TRISSUR DISTRICT. 4. CHERIYAN, AGED 56 YEARS, S/O.KURIYATTUNJATTUKKIL PAILY, PUTHENKURISU VILLAGE, BRAHMAPURAM, KUNNATHUNADU, ERNAKULAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ------------------------- W.P (C) No.23883 of 2010 -------------------------- Dated this the 30th day of July, 2010 J U D G M E N T This writ petition is filed by defendant Nos.1 to 3 in O.S.No.357 of 2009 of the court of learned Munsiff, Vadakkancherry. That is a suit filed by respondent Nos.1 and 2 against petitioners and respondent Nos.3 and 4 seeking a decree for prohibitory injunction to restrain them from causing obstruction to plaint B to E schedule pathway over which respondent Nos.1 and 2 claimed a right of access. Petitioners/defendant Nos.1 to 3 filed Ext.P2, written statement denying existence of the pathway and claiming that the suit is result of collusion between respondent Nos.1 and 2 and respondent Nos.3 and 4 who have already filed O.S.No.244 of 2009 against petitioners in respect of the same way. Advocate Commissioner inspected the suit properties and referred to the disputed way. According to the Commissioner, there is a gate at the entrance of plaint B schedule way and the disputed way was seen closed with fence. Commissioner reported that if obstructions are removed, respondent Nos.1 and 2 can use it for access to their properties. Commissioner also reported that plaint D and E schedules as it now stand is not the pathway. In the light of that report, respondent Nos.1 and 2 filed Ext.P5, application for W.P.C.No.23883 of 2010 : 2 : amendment of plaint to incorporate a relief of mandatory injunction to reopen the way alleging that after institution of the suit and before Advocate Commissioner inspected the properties, petitioners closed the way. That application was opposed by the petitioners vide Ext.P6, objection. Learned Munsiff has allowed the application vide Ext.P7, order which is under challenge. Learned counsel contends that amendment if permitted would alter the nature and character of the suit and that application is highly belated. it is also contended that amendment is not necessary for adjudication of the dispute. 2. On hearing counsel for petitioners and going through the records presented before me I find myself unable to accept the arguments. Respondent Nos.1 and 2 came with the allegation that petitioners closed plaint B to E schedules after institution of the suit and before inspection by the Advocate Commissioner. Commissioner has reported about the disputed pathway except D and E schedules. Commissioner also reported about some obstruction to the pathway through which respondent Nos.1 and 2 claimed right of access. Ext.P5, application for amendment was filed in the above circumstances. The question whether averments sought to be incorporated by amendment are correct or not are matters which the court is required to consider while considering W.P.C.No.23883 of 2010 : 3 : the application for amendment. The court has to consider whether amendment is necessary for adjudication of the dispute. In so far as respondent Nos.1 and 2 have a case that alleged obstruction was caused after filing of the suit, it is only proper that permission was given to respondent Nos.1 and 2 to amend the plaint and seek appropriate reliefs. I am unable to accept the contention that amendment if allowed would change nature and character of the suit. I find no reason to interfere. Writ petition is dismissed. THOMAS P JOSEPH JUDGE Sbna/