IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 WP(C).No. 28195 of 2009(O) -------------------------- OS.86/2007 of SUB COURT,KATTAPPANA .................... PETITIONER: --------------- R.PALRAJ, AGED 37 YEARS, S/O.LATE RENGAYYAN, KANI ESTATE, PAMPADUMPARA VILLAGE, PAMPADUMPARA KARA, IDUKKI DISTRICT. BY ADV. MR.A.C.DEVASIA RESPONDENTS: --------------- 1. R.RAMARAJ, S/O.LATE N.RENGASWAMY CHETTIYAR, DOOR NO.14, RAJAJI STREET, KOMBAI VILLAGE, UTHAMAPALAYAM TALUK, MADURAI DISTRICT, TAMIL NADU. 2. NALLA THAMBI, S/O.RAMARAJ, DOOR NO.14, RAJAJI STREET, KOMBAI VILLAGE, UTHAMAPALAYAM TALUK, MADURAI DISTRICT, TAMIL NADU. 3. VENKETESHAN, S/O.RAMARAJ, DOOR NO.14, RAJAJI STREET, KOMBAI VILLAGE, UTHAMAPALAYAM TALUK, MADURAI DISTRICT, TAMIL NADU. 4. R.LAKSHMANAN, S/O.LATE N.RENGASWAMY CHETTIYAR, VALIYAPURAKKAL HOUSE, CHOORAKKAT HOUSE, DOOR NO.14, RAJAJI STREET, KOMBAI VILLAGE, UTHAMAPALAYAM TALUK, MADURAI DISTRICT, TAMIL NADU. (CNTD...2) WP(C).No. 28195 of 2009(O) ::2:: 5. L.MURUGHAN, S/O.R.LAKSHMANAN, DOOR NO.14, RAJAJI STREET, KOMBAI VILLAGE, UTHAMAPALAYAM TALUK, MADURAI DISTRICT, TAMIL NADU. 6. L.BALAMURUGHAN, S/O.R.LAKSHMANAN, DOOR NO.14, RAJAJI STREET, KOMBAI VILLAGE, UTHAMAPALAYAM TALUK, MADURAI DISTRICT, TAMIL NADU. 7. RAMACHANDRAN, S/O.N.RENGASWAMY CHETTIYAR, DOOR NO.14, RAJAJI STREET, KOMBAI VILLAGE, UTHAMAPALAYAM TALUK, MADURAI DISTRICT, TAMIL NADU. 8. NAGAMMAL, W/O.LATE RENGASWAMY CHETTIYAR, DOOR NO.14, RAJAJI STREET, KOMBAI VILLAGE, UTHAMAPALAYAM TALUK, MADURAI DISTRICT, TAMIL NADU. 9. R.SELVI PONDARAJ, W/O.PONDARAJ, KANI ESTATE, PAMPADUMPARA VILLAGE, PAMPADUMPARA KARA - IDUKKI DISTRICT. 10. R.RAJENDRAN, S/O. LATE N.RENGAYYAN, KANI ESTATE, PAMPADUMPARA VILLAGE, PAMPADUMPARA KARA - IDUKKI DISTRICT. 11. R.SILVAN, S/O. LATE N. RENGAYYAN, KANI ESTATE, PAMPADUMPARA VILLAGE, PAMPADUMPARA KARA - IDUKKI DISTRICT. 12. R.KALARANI, W/O. RAMAKRISHNAN, KANI ESTATE, PAMPADUMPARA VILLAGE, PAMPADUMPARA KARA - IDUKKI DISTRICT. 13. R. PREMA, D/O.LATE N. RENGAYYAN, KANI ESTATE, PAMPADUMPARA VILLAGE, PAMPADUMPARA KARA - IDUKKI DISTRICT. 14. R.KUMAR, S/O. LATE N.RENGAYYAN, KANI ESTATE, PAMPADUMPARA VILLAGE, PAMPADUMPARA KARA - IDUKKI DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.28195 of 2009 - O --------------------------------- Dated this the 8th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P9 order dated 25.8.2009 in I.A.No.822/2008 in O.S.No.86/2007 of the Sub Court, Kattappana and allow Ext.P7. ii) To issue a writ of mandamus or any other appropriate writ, order or directions directing the court below to accept Ext.P8 commission application.” 2. Petitioner is the plaintiff in O.S.No.86 of 2007 on the file of the Sub Court, Kattappana. The above suit is one for a perpetual prohibitory injunction, and the respondents are the co- plaintiffs and defendants. Only the sixth defendant resisted the suit claim by filing a written statement. Plaintiff moved an application for amendment of the plaint to seek additional relief of fixation of boundary and refund of the amount which was deposited by the receiver appointed by the court in another suit in respect of several properties including the plaint property. W.P.(C).No.28195 of 2009 - O 2 That amendment application was objected to by the sixth defendant and after hearing both sides, the learned Sub Judge dismissed that application vide Ext.P9 order. Propriety and correctness of Ext.P9 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary and it is dispensed with. 4. inviting my attention to the exhibits tendered with the petition, learned counsel for the petitioner submitted, as against the defendants in the present suit, a decree had been passed earlier in favour of the plaintiffs declaring their title over the plaint property. However, some orders happened to be passed prejudicing their interest over the property in respect of returning of possession by the receiver appointed in the previous suit in which the present plaintiffs were not parties. So much so, even after getting a decree in their favour declaring their title over the W.P.(C).No.28195 of 2009 - O 3 property they were constrained to file the present suit seeking a decree of prohibitory injunction to prevent trespass over the property by the defendants. In view of the contentions raised by the sixth defendant in his written statement seeking of some additional relief by way of amendment was therefore found necessary and an application for amendment was moved before the court. The court below has passed Ext.P9 order without adverting to the facts and circumstances and the earlier decree passed in favour of the plaintiff, is the grievance canvassed by the learned counsel for the petitioner for interfering with Ext.P9 order disallowing the amendment application. 5. From the submissions made and after perusing Ext.P9 order with reference to the other exhibits produced in the writ petition, I find the case has already been posted in the special list for trial. The amendment sought for by the plaintiff was also moved after settling of issues in the suit. When that be so, the court cannot be found fault with for disallowing the amendment application without the petitioner/plaintiff establishing that despite due diligence the proposed amendment could not have W.P.(C).No.28195 of 2009 - O 4 been canvassed earlier as mandated under the proviso to Order VI Rule 17 of the Code of Civil Procedure. Whatever that be, on the facts and circumstances presented and also looking into the proposed amendment seeking an additional relief of fixation of boundary it is noticed that essential foundation for seeking such a relief has not been made out either in the previous pleadings or in the present plaint as to who are the parties having common boundaries with the plaintiff's property and so much so, no purpose will be served even if the amendment canvassed by the petitioner is allowed. Taking note of the above aspect the learned counsel for the petitioner submitted that unless a comprehensive suit is filed despite the previous decree passed declaring the title of the plaintiffs over the property the plaintiffs may not be able to safeguard their interest over the property and so much permission may be accorded to the petitioners to withdraw the present suit with liberty to file a fresh suit. Having regard to the peculiar circumstances presented in the case, I find the request canvassed by the learned counsel for the petitioner cannot be termed as not genuine. However, it is within the W.P.(C).No.28195 of 2009 - O 5 province of the trial court to consider whether the withdrawal of the suit has to be granted for the reason it suffers from any formal defect or for any other justifiable reason, and so much so, it is not proper and appropriate for this Court to enter a finding on that question. However, I direct the court below to consider the request of the petitioner for withdrawal of the suit with liberty to file a fresh suit, if any such request is made, taking note, so long as there is wilful or culpable latches disentitling a party in vindicating his right over an immovable property, the normal procedure is to grant permission for withdrawal of the suit for filing a fresh suit. Ext.P9 order, as indicated earlier, does not suffer from any jurisdictional infirmity warranting interference by this Court. Writ petition is disposed of with the above observations. S.S.SATHEESACHANDRAN, JUDGE. bkn/-