IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 WP(C).No. 7701 of 2009(O) ------------------------- OS.217/2004 of PRL.MUNSIFF COURT-II,KOZHIKODE .................... PETITIONER(S): --------------- POOVATHUMKANDI CHANDRASEKHAR, S/O.APPU, AGED 76 YEARS, "SURESH PRABHA", KILIYANAD SCHOOL ROAD, KULATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. BY ADV. MR. R.SUDHISH MS.M.MANJU RESPONDENTS: --------------- 1. ABOOBACKER, S/O.HYDROSE, AGED 40 YEARS, PULIKKAL, PANNIYAMKARA AMSOM, DESOM, KAMBITTAVALAPPU, KANNANCHERI, POST KALLAI, KOZHIKODE -3. 2. SUBAIDA, D/O. -DO- -DO- 3. JAMEELA, D/O. -DO- -DO- 4. ASHRAF, S/O. -DO- -DO- 5. AZEEZ, S/O. -DO- -DO- 6. SEFIA, D/O. -DO- -DO- 7. SHEREEFA, D/O. -DO- -DO- 8. SEHEED, S/O. -DO- -DO- 9. SENEER, S/O. -DO- -DO- THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- W.P.(C).No. 7701 OF 2009 -------------------------------------------------- Dated this the 17th day of March, 2009 J U D G M E N T Plaintiff in O.S.217 of 2004 on the file of Principal Munsiff Court, Kozhikode filed this petition under Article 227 of Constitution of India challenging Ext.P5 order dismissing I.A.924 of 2009, an application filed under Rule 17 of Order VI of Code of Civil Procedure seeking amendment of the plaint. The suit was instituted in 2004 claiming a decree for mandatory injunction to remove the structures in the plaint C and D schedule properties and also for a permanent prohibitory injunction. After examination of the petitioner as PW1, Ext.P3 I.A.924 of 2009 was filed to amend the plaint seeking a decree for recovery of possession contending that in case it is found that respondents are in possession of plaint C and D schedule properties, petitioner is entitled to a decree for recovery of possession on the strength of his title. Petition was opposed by respondent by filing Ext.P4 objection. Learned Munsiff under Ext.P5 order dismissed the application. W.P.(C).7701/2009-O 2 2. Learned counsel appearing for petitioner argued that the petition was dismissed on two grounds, namely nature of the suit will be altered if it is allowed and the petition was belated. Learned counsel argued that by amending the plaint by incorporating a prayer for recovery of possession, neither the nature nor the character of the suit is changed and therefore dismissal of the application on that ground is illegal. Relying on the decision of the Apex Court in Sampath Kumar Vs. Ayyakannu and another (2002(7) SCC 559) it was argued that the delay could always be compensated by cost and therefore dismissal of the application on the ground of delay is also not legal. 3. On hearing the learned counsel I find no reason to interfere with Ext.P5 order in exercise of the powers under Article 227 of Constitution of India. Though by amendment of the plaint and converting a suit for mandatory injunction to a suit for recovery of possession, the nature and character of the suit is not changed, when an application is field after the evidence in the suit has been partly recorded, court can allow the application only on the satisfaction provided under proviso to Rule 17 or W.P.(C).7701/2009-O 3 Order VI. The proviso mandates that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. On going through Ext.P3 petition and the affidavit filed by the petitioner, I find no satisfactory reason shown as to why the application should not have been moved before commencement of the trial. Though learned counsel argued that it is by the trend of the cross-examination of PW1, appellant felt the necessity to file an application for amendment, what is to be looked into is whether with due diligence petitioner could have moved the application earlier before commencement of trial. Definitely the application could have been filed earlier. In such circumstances dismissal of the application is legal. Petitioner is at liberty to challenge the order along with the judgment in the suit, if warranted. Writ petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb