IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 WP(C).No. 19292 of 2010(O) -------------------------- OS.41/1998 of PRINCIPAL MUNSIFF COURT-I,KOZHIKODE .................... PETITIONER(S): --------------- T.PANKAJAVALLI ALIAS THAYYIL PANKAJAVALLI, D/O.LATE GOVINDAN NAIR, AGED 57 YEARS, KARUKKAYIL HOUSE, PUTHIYANGADI VILLAGE, EDAKKAD AMSOM, DESOM, KOZHIKODE. BY ADV. SRI.K.M.FIROZ SMT.SHAJNA FIROZ RESPONDENT(S): --------------- M.K.UNNIKRISHNAN, S/O.JANAKI AMMA, MOOLAMVALLIKIZHALATH, EDAKKAD AMSOM, DESOM, KOZHIKODE DISTRICT 670005. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.19292 of 2010 -------------------------------------- Dated this the 22nd day of June, 2010. JUDGMENT Plaintiff in O.S.No.41 of 1998 who sought recovery of possession of plaint B schedule from the respondents has come up in Writ Petition challenging Ext.P5, order declining permission to amend the plaint for a second time. It is not disputed that originally there was a report and sketch prepared by the Advocate Commissioner which were set aside on the request of petitioner and thereafter, Advocate Commissioner was deputed to identify the disputed property with the assistance of Surveyor. Accordingly, Commissioner has filed Ext.P1, report and Ext.P1(a), plan. Based on the measurements given in Ext.P1(a), petitioner sought for and obtained permission to amend the plaint in the year 2007. Thereafter, parties went into trial and evidence was recorded. It is at that time petitioner again brought up an application for amendment of the plaint stating that there happened to be some mistake in mentioning the measurements in Ext.P1(a), plan in the application for amendment of plaint that was preferred in the year 2007 and allowed by the learned Munsiff. Learned Munsiff observed that the application is filed after trial has commenced and hence the proviso to Order 6 Rule 17 of the Code of Civil Procedure (for short, “the Code”) squarely applied. It is also stated by learned Munsiff that a perusal of the application for amendment would show that the amendment sought for is not in accordance with the report and sketch (Exts.P1 and P1(a)) submitted by the Advocate Commissioner. WP(C) No.19292/2010 2 2. Learned counsel contends that in Ext.P1(a), plan, measurement of plaint B schedule (in yellow shade) was given “32.7” and near that measurement, another measurement of “48.6” was given which happened to be stated in the amendment application preferred in the year 2007 and accordingly incorporated in the plaint. What is required is only correction of that measurement. Two other similar mistakes are also pointed out from Ext.P1(a), plan and happened to be stated in the application for amendment of the year 2007. According to the learned counsel proviso to Order 6 Rule 17 of the Code has no application since the mistake had already been pointed out by the petitioner in the trial court even before commencement of the trial. 3. To me it appears that what is contemplated under Order 6 Rule 17 of the Code is against entertaining application for amendment after commencement of the trial unless the party is able to show that inspite of exercise of due diligence he was not able to raise it (by way of amendment). It is not as if it is sufficient that petitioner orally raised the issue before the trial court and after commencement of the trial application for amendment is preferred. Such an interpretation would defeat the very object of incorporating the proviso to Order 6 Rule 17 of the Code. That provision is made to avoid the application for amendment being preferred after commencement of the trial. That provision should apply on the facts of this case as well. 4. This is a case of the year 1998 and, it is not as if petitioner was not given opportunity to amend the plaint. He was given an opportunity and, he availed that. Now the contention is that there happened to an inadvertent WP(C) No.19292/2010 3 mistake in mentioning measurements shown in Ext.P1(a) in the earlier application for amendment. It is pertinent to note that application for amendment came only after the witnesses were examined. In the words of learned Munsiff, the evidence of petitioner was over on 17.03.2010, the case was posted for defence evidence and it is while so that the present application for amendment was made. Learned Munsiff who had occasion to go through the records has observed that attempt is to protract the disposal of the case. I do not find reason to interfere with the order passed by the learned Munsiff. But, I make it clear that if what has happened is only some interchange of measurements shown in Ext.P1(a), sketch as regards disputed property and, it is otherwise possible it is open to the petitioner to raise that issue at the time of hearing if that course is permissible or, if at all the case is decided against him to challenge correctness of the order (Ext.P5) passed by the learned Munsiff in the appellate court. With the above observation, this Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks