IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 18TH JUNE 2007 / 28TH JYAISHTA 1929 WP(C).No. 28873 of 2005(K) -------------------------- OS.52/2001 of MUNSIFF COURT, TIRUR .................... PETITIONER: ------------- ARAYANTEPURACKAL ASSAINAR ALIAS KUNJUMON, S/O.MUHAMMEDKUTTY, P.O.PARAVANNA, PACHATTIRI AMSOM TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.MUJEEB RESPONDENTS: ---------------- 1. SAINABA, D/O.ARAYANTEPURACKAL MUHAMMEDKUTTY, P.O.PARAVANNA, PACHATTIRI AMSOM, TIRUR TALUK, MALAPPURAM DISTRICT. 2. JAMEELA, W/O.NECHIYENGAL MUHAMMED ALIAS KUNJUMON MOORKANAD AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. *3. ABDUL HAMEED, IRIMBILI AMSOM DESOM, MANKERI, TIRUR TALUK, MALAPPURAM DISTRICT. 4. PATHU, W/O.ARAYANTEPURACKAL MUHAMMEDKUTTY, PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. (*THE 3RD RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DT.20.2.06 IN WPC(C) 28873/05) BY ADV. SRI.R.RAJESH KORMATH SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SRI.V.S.ROBIN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 28873 OF 2005 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE PLAINT FILED BY THE PETITIONER IN OS NO.52 OF 2001 DT.5.3.2001 BEFORE THE FILED OF MUNSIFF'S COURT, TIRUR. EXT.P2 : TRUE COPY OF AMENDMENT PETITION DT.31.8.2005 FILED BY THE PETITIONER. EXT.P3 : TRUE COPY OF THE TYPED ORDER IN IA NO.1907/05 IN OS NO.52/2001 DT.23.9.05 ON THE FILE OF MUNSIFF'S COURT, TIRUR. PIUS C. KURIAKOSE, J. ------------------------------- W.P.(C) No. 28873 OF 2005 ----------------------------------- Dated this the 18th day of June, 2007 JUDGMENT The learned counsel for the petitioner submits that at the time when the application for amendment was filed, nobody has been examined in the suit and in that sense actual trial had not commenced. The issue is covered by judgment of this Court in Neelakandan Nair v. Parameswara Kurup [2003 (3) KLT 990]. Though there is a contention that on allowing the amendment, will alter the character of the suit, the suit will continue to be a suit for partition. The effect of the amendment will be only on the total extent of the property and its re-survey number only. The above submission is correct. Under these circumstances, I am inclined to set aside the impugned order and allow the amendment application, but the same will only be on strict conditions. Accordingly, Ext.P3 will stand set aside and the application for amendment will stand allowed on condition that the petitioner pays to the respondents who have entered appearance in this Court, through their counsel in this Court a sum of Rs.1,500/- and to the High Court Legal Services Committee Rs.500/- within one month from today. Failing such payments the Writ Petition will stand dismissed. Under such an event the impugned order will become operative. If WPC No. 28873 of 2005 2 payment is made and the order allowing the amendment becomes operative, the court below will give an opportunity to the respondents to file additional written statement, if they so choose. PIUS C. KURIAKOSE, JUDGE btt WPC No. 28873 of 2005 3