IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).NO. 4433 OF 2010(O) --------------------------------------- OS.70/2009 OF MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): ---------------------- ULAHANNAN, S/O.VARKEY, ASHIRVAD HOUSE, KADATHY KARA, VELLOORKUNNAM VILLAGE, REPRESENTED BY POWER-OF-ATTORNEY MERCY (PERMISSION TO POWER OF ATTORNEY GRANTED BY THE COURT BELOW BY ORDER IN IA NO.1935/2009 DATED 29-10-2009). BY ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S): ------------------------ PAULOSE, THOTTAPPATTUKUDIYIL HOUSE, KADATHY KARA, VELLOORKUNNAM VILLAGE. ADV. SRI.SAJI VARGHESE KAKKATTUMATTATHIL FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PLIANT IN O.S. NO.70 OF 2009 OF MUNSIFF'S COURT, MUVATTUPUZHA FILED BY THE PETITIONER DATED 12.2.2009. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO.70 OF 2009 FILED BY THE PETITIONER DATED 24.2.2009. EXHIBIT P3 TRUE COPY OF THE APPLICATION I.A. NO.3 OF 2010 IN O.S. NO.70 OF 2009 FILED BY THE PETITIONER DATED 4.1.2009. EXHIBIT P4 TRUE COPY OF THE OBJECTION TO I.A. NO.3 OF 2010 IN O.S. NO.70 OF 2009 FILED BY THE RESPONDENT DATED 19.1.2010. EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A. NO.3 OF 2010 IN O.S. NO.70 OF 2009 OF MUNSIFF'S COURT, MUVATTUPUZHA DATED 28.1.2010. RESPONDENT'S EXHIBITS: -------------------------------------- EXHIBIT R1(a) TRUE COPY OF THE REPORT DATED 17.2.2009 OF THE ADVOCATE COMMISSIONER. EXHIBIT R1(b) TRUE COPY OF THE REPORT DATED 25.2.2009. EXHIBIT R1(c) TRUE COPY OF THE ORDER IN I.A. .NO.535 OF 2009 DATED 3.4.2009. EXHIBIT R1(d) TRUE COPY OF THE ORDER IN CMA NO.8 OF 2009 DATED 20.11.2009. TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.4433 of 2010 ==================================== Dated this the 16th day of June, 2010 J U D G M E N T Challenge in this Writ Petition is to Ext.P5, order declining permission to amend the plaint. Petitioner sued respondent for a decree for prohibitory injunction against the latter obstructing the former using plaint B schedule pathway originally stated in the plaint schedule as having length of 25 feet, width of 16 feet and covering an area of two cents. Respondent resisted the suit denying existence of the pathway. Petitioner filed I.A. No.3 of 2010 for amendment of the plaint. What is sought to be incorporated by amendment is that dimension of disputed pathway is to be amended to 21 feet in length and its extent as half a cent as against 25 feet in length and extent of two cents originally stated in the plaint. Though in the plaint schedule petitioner had stated that plaint B schedule is comprised in different survey numbers, by amendment he wanted to delete one of those survey numbers. Yet another matter sought to be incorporated by amendment is a specific averment regarding right of way of easement by W.P(C) No.4433 of 2010 -: 2 :- prescription. Learned Munsiff was of the view that amendment if allowed will cause prejudice to the respondent and it will even change the character of plaint B schedule. Accordingly that application was dismissed. Learned counsel for petitioner contends that finding of learned Munsiff is not correct. Learned counsel for respondent contends that application for temporary injunction was dismissed by the learned Munsiff and in the appeal therefrom it was agreed by both sides that suit itself could be disposed of immediately but the application for amendment was preferred at the fag end of the proceeding. 2. There is nothing on record to show that amendment was sought for after trial has commenced so that the proviso to Order VI Rule 17 of the Code of Civil Procedure applied. Then the question is whether learned Munsiff was correct in dismissing the prayer for amendment. It is seen that length and area of the disputed pathway are sought to be reduced by the proposed amendment from what is stated in the plaint originally which will not cause any prejudice to the respondent. Deletion of one of the survey numbers also did not cause any conceivable prejudice to the respondent so far as there is no change to the schedule. Then the question is whether amendment as regards nature of W.P(C) No.4433 of 2010 -: 3 :- right claimed by petitioner was permissible. By the amendment petitioner wanted specifically to say that he has a right of way of easement by 'prescription'. I have gone through copy of plaint. Petitioner is pinning his case on easement by prescription but it was not specifically averred in the plaint. It is not as if there was no foundation at all in the plaint for the plea of easement by prescription. In fact by the proposed amendment petitioner is reducing the period of user from 30 years as originally stated in the plaint to 21 years. I am not persuaded to think that by the proposed amendment there was any change of the character or nature of the suit or plaint B schedule nor I am inclined to think that amendment prejudiced the respondent. 3. Respondent has a case that the servient owner of the property is not himself but his son who is not impleaded in the suit. That is not a matter required to be gone into in this proceeding. It is for petitioner to meet that contention in the appropriate manner. Having regard to the circumstances stated I am persuaded to think that learned Munsiff was not correct in dismissing the application for amendment of plaint. Resultantly Writ Petition is allowed. The impugned order is set aside. I.A. No.3 of of 2010 will stand allowed. Petitioner shall W.P(C) No.4433 of 2010 -: 4 :- carry out the amendment within fourteen (14) days from this day or within such time as may be extended by learned Munsiff on his application. Needless to say that respondent will get opportunity to file additional written statement. Parties can request learned Munsiff to expedite disposal of the suit. THOMAS P. JOSEPH, JUDGE. vsv