IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 OP(C).No. 3170 of 2011(O) ------------------------- OS.1698/2008 of I ADDL.M.C.,TRIVANDRUM ........................ PETITIONER (S): ---------------- P.P.VIJAYAN, S/O.P.G.PAPPAN, HEERA HAVENS, ULLOOR, THIRUVANANTHAPURAM.. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENT(S): --------------- K.R. SOMASEKHARAN NAIR, T.C.1/166(3) CHITHIRAMANGALAM, THURIVICKAL.P.O., AKKULAM,THIRUVANANTHAPURAM-695031. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SU O.P.C.NO.3170/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PLAINT IN O.S.NO.1698/2008 ON THE FILE OF THE MUNSIFF'S COURT, THIRUVANANTHAPURAM. P2: COPY OF WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S. NO.1698/2008. P3: COPY OF COMMISSION REPORT AND PLAN DT-4-12-2009 FILED IN O.S. NO.1698/2008. P4: COPY OF OBJECTION FILED BY THE PETITIONER IN EXT.P3 COMMISSION REPORT. P5: COPY OF ORDER DT-22-1-2010 PSSED BY THE MUNSIFF'S COURT, THIRUVANANTHAPURAM. P6: COPY OF AMENDMENT APPLICATION FILED BY THE RESPONDENT IN O.S.NO.1698/2008. P7: COPY OF OBJECTION FILED BY THE PETITIONER IN I.A. NO.1710/2010. P8: COPY OF COMMISSION REPORT AND PLAN SUBMITTED IN O.S.NO.1698/2008. P9: COPY OF OBJECTION DT. 31/5/2011 IN EXT.P8 COMMISSION REPORT FILED BY THE PETITIONER. P10: COPY OF ORDER DT.11-8-2011 PASSED BY MUNSIFF'S COURT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: NIL. /TRUE COPY/ P.A. TO JUDGE SU THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3170 of 2011 ==================================== Dated this the 03rd day of October, 2011 J U D G M E N T Defendant in O.S. No.1698 of 2008 of the court of learned First Additional Munsiff, Thiruvananthapuram is the petitioner before me. Respondent-plaintiff sued petitioner for fixation of boundary of the suit property. The Advocate Commissioner submitted a report and plan. There was objection to that and the same were remitted. Further report and plan were submitted. Based on that, the parties went into trial and the case was posted for judgment. At that stage respondent filed application for amendment of the plaint stating that now he learned that documents of the petitioner deals with more property than to which his vendor was entitled and could convey. He therefore wanted to plead in the plaint that the documents of petitioner would not bind him. Claim was objected by petitioner on various grounds including that all the documents which he relies on were produced in court much earlier and that plea of respondent that he now learned about the same cannot be accepted. Learned Munsiff passed Ext.P10, order allowing amendment on terms of O.P(C) No.3170 of 2011 -: 2 :- costs to compensate petitioner. That order is under challenge. 2. Learned counsel contends that learned Munsiff has observed that relevant documents relied on by petitioner which are now impugned by the respondent were produced much earlier and hence respondent could not urge that he learned about those documents only now. It is contended that in view of the proviso to Rule 17 of Order VI of the Code of Civil Procedure (for short, “the Code”) since the application for amendment came only after commencement of the trial it was incumbent on the respondent to show that in spite of exercise of due diligence he could not ask for amendment. It is pointed out that it is only on satisfying the proviso that the court would get jurisdiction to allow amendment of pleadings once trial has commenced. In that view of the matter it is contended that Ext.P6, order is not correct and is liable to be set aside. 3. It is true that the learned Munsiff has observed in paragraph 10 of the order that the documents on which petitioner relies on were produced earlier. But the application for amendment came only after trial commenced and the case was posted for judgment. There could be no dispute regarding the proviso to Rule 17 of Order VI of the Code. The decision relied on O.P(C) No.3170 of 2011 -: 3 :- by learned counsel in Vidyabal v. Padmalatha (2009 [1] KLT SN 14 (Case No.13) deals with what is commencement of trial. This Court had occasion to deal with the issue in Eapen Antony v. Joseph and Another (2009 ILR (Ker.712) where it is stated that even a most diligent party may omit to ask for an amendment on time and only when he is in the box he is alerted about the inadequacy or mistake in the pleadings. The Supreme Court in State of Maharashtra v. Hindustan Const. Corpn. (2010 [2] Supreme 697) held that when the trial court has exercised the discretion to grant or refuse the amendment prayed for, superior court is required to interfere only when the order is patently illegal. The superior court is not required to interfere with the discretionary order passed by the trail court. 4. In this case it is not disputed that the request for amendment came only after the trial commenced. It is also true that various circumstances under which respondent failed to ask for amendment at an earlier point of time are not stated in the affidavit. But I must take note of the decision of this Court which I have referred above. I must also bear in mind that the O.P(C) No.3170 of 2011 -: 4 :- trial court though not specifically referring to the proviso to Rule 17 of Order VI of the Code had in mind the fact that the application was belated and was being filed after commencement of trial. It is bearing in mind that the learned Munsiff has exercised the discretion to grant relief in favour of the respondent. I am not inclined to think that petitioner is prejudiced by the order so that this Court is required to interfere in the matter. Petitioner would get the opportunity to file additional written statement in answer to the amended plaint. If learned Munsiff has not already posted the case for filing additional written statement, necessarily if the amendment is carried out, petitioner should be given opportunity to file additional written statement. Original Petition is closed with the above direction. THOMAS P. JOSEPH, JUDGE. vsv