IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 FAO.No. 252 of 2007() ------------------------------ AS.41/2003 of 1ST ADDL.DISTRICT COURT, KOZHIKODE OS.245/1996 of PRL. MUNSIFF COURT, KOZHIKODE-II .................... APPELLANTS/RESPONDENTS 2 & 5 ---------------------------------------------------- *1. P.V.JACOB, S/O. MATHEW, AGED 55 YEARS, CHELAVOOR VILLAGE, MAYANAD DESOM, KOZHIKODE TALUK. (*DIED) 2. RARANVEEDU PARAMBIL KRISHNAN, AGED 58 YEARS, S/O. UNNIKUTTAN, RESIDING AT RARANVEEDU PARAMBIL, ENASWARY HOUSE, CHELAVOOR VILLAGE, MAYANAD DESOM, KOZHIKODE TALUK. * A1 DIED SUPPLIMENTAL APPELLANTS IMPLEADED ADDL. A3: CHINNAMMA JACOB, W/O.P.V. JACOB. ADDL. A4: THERESA JACOB, D/O.P.V. JACOB. (BOTH RESIDING AT MALIYEKKAL HOUSE, RARAMVEEDU PARAMBA, MAYANAD P.O., KOZHIKODE-673 004.) * ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST APPELLANT, VIDE ORDER DATED 24/09/2009 IN I.A.3193/2009. BY ADV. MR.K.A.SALIL NARAYANAN RESPONDENTS/APPELLANTS & RESPONDENTS: ---------------------------------------------------------------------- 1. PARAMADATHIL RAMACHANDRAN, S/O. KESAVAN NAMBEESAN, AGED 42 YEARS, GEETHALAYAM,CHELAVOOR AMSOM DESOM, KOZHIKODE TALUK. 2. THANNIKAL POULOSE,S/O. MATHAYI, AGED 57 YEARS, CHELAVOOR VILLAGE, MAYANAD DESOM, KOZHIKODE TALUK. 3. MADHARAMBATH MUHAMMED,S/O.ABOOBACKER, AGED 51 YEARS, RARAN VEEDU PARAMBU, CHELAVOOR VILLAGE, MAYANAD DESOM , KOZHIKODE TALUK. FAO.No. 252 of 2007 4. MAKKOTH SUBAIDA, AGED 44 YEARS, W/O.MADHARAMBATH MUHAMMED, RARAN VEEDU PARAMBU, CHELAVOOR VILLAGE, MAYANAD DESOM, KOZHIKODE TALUK. R1 BY ADV. MR.V.V.SURENDRAN, MR.P.A.HARISH. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO.No. 252 of 2007 ORDER ON I.A. NO.3204/2007 IN F.A.O. NO.252/2007 DISMISSED 07/10/2009. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 252 OF 2007 = = = = = = = = = = = = = = = Dated this the 7th day of October, 2009. J U D G M E N T This appeal is preferred against the order of remand passed by the learned Addl. Dj, Kozhikode in A.S.41/03. The said appeal was preferred against the judgment and decree in O.S.245/96 of the Addl. Munsiff-II, Kozhikode. The suit to start with was one for a permanent injunction which was later sought to be amended to one for recovery of possession. I.A.1150/02 was filed for the said purpose of amendment and the court allowed the same on payment of costs. The plaintiff filed a statement before court that he is unable to pay costs which resulted in dismissal of the amendment application. Thereafter the suit was tried and the it was dismissed. Against that decision the appeal was preferred and in appeal desperate and earnest efforts were made to revive the order passed by the trial court regarding the amendment of the plaint. Under ordinary circumstances this court should have denied to give a chance but the fact F.A.O. 252 OF 2007 -:2:- remains that by filing an application for amendment for recovery of possession on the strength of title there had been a submission or admission regarding the possession of the defendant and that is the reason why the recovery of possession is sought on the strength of title. At any rate even if the injunction suit is dismissed the defendants also have to face a suit for recovery of possession on the strength of title for which there will not be any bar. The litigation has started in the year 1996 and we are in the year 2009. Therefore again drawing the parties to a fresh litigation from a scratch would cause real difficulties for them whereas if the amendment application is allowed then the court can decide the question of title and there can be a finality to the litigation. But for the conduct of the plaintiff I feel he requires some more penalization. He had already been directed to pay Rs.3,000/- to the District Legal Services Authority but really the whole difficulty is for the defendants who have not been given any costs at all. Therefore I direct the plaintiff to pay a some of Rs.5,000/- as costs to the F.A.O. 252 OF 2007 -:3:- counsel appearing before this court for the defendants and when it is complied with the order of remand can be worked out and the case to be disposed of by the trial court accordingly. I make it clear that the payment of the said costs of Rs.5,000/- be paid or or before 31.10.2009 and when the said memo is filed before this Court the Registry is directed to communicate this order to the trial court. I also fix a date of appearance for the parties as 19.11.2009. FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/- Respondent No.1/plaintiff has paid Rs.5,000/- (Rupees five thousand only) towards cost to the counsel for the defendants/ (appellants) within the stipulated time in compliance of the direction contained in the judgment dated 07/10/2009 in F.A.O.252/07 vide memo c.f.6886/09 dated 21.10.2009. Sd/- Registrar(Judicial)