IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 OP(C).NO. 614 OF 2010(O) ------------------------------------- OS.104/2008 OF MUNSIFF COURT,ALUVA .................... PETITIONER: -------------------- KARIM, AGED 57 YEARS, S/O.MOHAMMED, CHALAYIL VEETTIL, NOCHIMA KARA, ALUVA TALUK. BY ADV. SRI.PAUL K.VARGHESE RESPONDENT(S): ------------------------ 1. RAMALA USMAN, AGED 39 YEARS, W/O. USMAN, CHALAYIL VEETTIL, NOCHIMA KARA, ALUVA TALUK. 2. USMAN, AGED 42 YEARS, S/O. ABDUL KADER, CHALAYIL VEETTIL, NOCHIMA KARA ALUVA ALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P(C)No.614 of 2010 -------------------------------------- Dated this the 08th day of November, 2010. JUDGMENT Defendant No.2 in O.S.No.104 of 2008 of the court learned Munsiff, Aluva is the petitioner before me. He is aggrieved by Ext.P5, order dated 03.11.2010 allowing amendment of the plaint as requested for in Ext.P3, application – I.A.No.1499 of 2008. 2. Respondent Nos.1 and 2 claimed title and possession of plaint A and B schedules as per assignment deed Nos.4978 of 2004 and 6334 of 2004. They also claimed that plaint C schedule is the pathway starting from the PWD road and reaching plaint A and B schedules which is their only access to the said properties. They claimed, among other things easement by way of grant over plaint C schedule. Petitioner filed written statement disputing claim of respondents. Thereafter respondents filed Ext.P3, application for amendment of plaint. Petitioner filed Ext.P4, objection. That application for amendment remained on the file of the court for quite some time and according to the learned counsel after the case was posted for trial this day (08.11.2010) learned Munsiff allowed Ext.P.3 application, on 03.11.2010 and thereafter the case is being taken up for trial this day. Learned counsel submits that Ext.P5, order is O.P(C) No.614 of 2010 2 bad in law. 3. I have gone through Ext.P1, plaint and Ext.P3, application for amendment. On going through Exts.P1 and P3 I do not find any substantial change brought about by amendment which would in any way cause prejudice to the petitioner. True, additional statements are also sought to be incorporated by Ext.P3, application and respondents also wanted to make a claim of right of easement by prescription over plaint C schedule. On going through Exts.P1 and P3 I am not persuaded to accept the argument of learned counsel that amendment would change/alter the nature and character of suit or cause prejudice to the petitioner. Hence challenge against Ext.P5, order cannot stand. 4. It is seen that Ext.P5, order is passed on 03.11.2010 and the case is posted for trial in the list on 08.11.2010. Necessarily, petitioner is entitled to file additional written statement in answer to the amended plaint and if necessary, additional issues are also to be framed. It is only thereafter that the case could be taken up for trial. Hence learned Munsiff is directed, in case no sufficient opportunity has been given to petitioner to file additional written statement, to take up the case only after giving petitioner sufficient opportunity to file additional written statement in answer to the amended plaint and if necessary, after framing additional issues if any. Resultantly this petition is disposed of directing learned Munsiff, Aluva to grant sufficient opportunity to the petitioner in case after Ext.P5, order no opportunity was given to him to file additional written statement in answer to the amended plaint. The case shall be taken up for trial only after such opportunity is O.P(C) No.614 of 2010 3 given to the petitioner and in case additional written statement is filed, after framing additional issues if any. THOMAS P.JOSEPH, Judge. cks