IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 WP(C).No. 32 of 2009(D) ----------------------- OS.730/2006 of ADDL.M.C.,KOZHIKODE-I .................... PETITIONER(S): --------------- MAMMICHITHAZHATH BIJU,AGED 37 YEARS, S/O GOPALAN, CHELANNUR, PALATH AMSOM, KOZHIKODE. BY ADV. SRI.KKM.SHERIF SRI.P.M.KUNJIMOIDEENKUTTY SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SMT.SHEENA SAMUEL RESPONDENT(S): --------------- BHARATHAN.P,AGED 53 YEARS, S/O.DAMODARAN, KAPPARAMBATH POYILIL, PADINHATTUM MURI AMSOM, KIZHAKKUMMURI DESOM, KOZHIKODE. ADV. SRI.K.M.FIROZ FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.32/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT. EXT.P2: COPY OF THE WRITTEN STATEMENT. EXT.P3: COPY OF THE SECOND REPORT AND PLAN DATED 26.0.2007. EXT.P4: COPY OF THE AMENDMENT APPLICATION. EXT.P5: COPY OF THE COUNTER. EXT.P6: COPY OF THE ORDER DATED 19.11.08 IN I.A.NO.4168/08. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.32 OF 2009 () ----------------------------------- Dated this the 21st day of January, 2010 J U D G M E N T The writ petition is filed seeking mainly the following relief: i. to issue a writ of certiorari or any other writ or order quashing Ext.P6 order dated 19.11.2008 passed by the Munsiff Court-I, Kozhikode. 2. Petitioner is the defendant in O.S.No.730 of 2006 on the file of the Munsiff Court-I, Kozhikode. Suit is one for recovery of possession, and the respondent is the plaintiff. Resisting the suit claim, petitioner/defendant has filed a written statement. An Advocate Commissioner deputed by the court, after conducting local inspection and measuring out the property, prepared a report and plan with the assistance of a surveyor. To the report and plan, the petitioner/defendant filed objection and applied for setting it aside. The court WPC.32/09 2 below, it is stated, has relegated consideration of the objection to the commission report and plan in trial. At that stage, the respondent/plaintiff moved an application for amendment of the plaint. That application, after hearing both sides, was allowed by the learned Munsiff vide Ext.P6 order. Propriety and correctness of Ext.P6 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The main challenge canvassed by the learned counsel for the petitioner/defendant against Ext.P6 order is that very many admissions made in the plaint specifically admitting the 'D' schedule property scheduled in the plaint as under the possession of the defendant are sought to be taken away by the amendment, and without considering that aspect the court below has mechanically allowed the amendment application. On the other hand, the learned counsel for the respondent/plaintiff submitted that the amendment sought for are in tune with the report and plan filed by the Advocate WPC.32/09 3 Commissioner and it is vital for a fair and proper disposal of the suit on merits. Perusing Ext.P6 order with reference to other exhibits produced in the writ petition and taking note of the submissions made by the counsel on both sides, I find there is force in the submissions made by the counsel for the respondent/plaintiff that the amendment has been sought for on the basis of the measurement made and plan prepared by the Advocate Commissioner. True, in the plaint, the plaintiff has stated that the 'D' schedule as described in the plaint is under the possession of the petitioner/defendant. That by itself cannot be decisive, when, after measurement by an Advocate Commissioner deputed by the court, it is found that correction of any mistake in the description is necessary for a fair disposal of the suit on its merits. It is open to the petitioner/defendant to canvass in the trial of the case whatever defenses available to him to resist recovery of possession of plaint 'E' schedule, which is alleged to have been trespassed upon by him and sought to be recovered by the plaintiff. The learned Munsiff after considering the merit of the amendment sought for has found that the amendment WPC.32/09 4 applied for is necessary for a proper adjudication of the case. I find no reason to take a different view. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp