IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(C).NO. 35150 OF 2009(O) ---------------------------------------- AGAINST THE ORDER IN IA 2219 /2009 IN OS.74/2003 OF MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): ----------------------- OUSEPH @ PAPPACHAN, AGED 66, KOLLAMMAVUDIYIL HOUSE, KUTTAMANGALAM KARA, KUTTAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENT(S): ------------------------- 1. GIGI, AGED ABOUT 41, S/O. CHERIAN, MARACHERIL PUTHENPURAYIL HOUSE, KUTTAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. 2. LAIJU, AGED ABOUT 37, S/O. CHERIAN, MARACHERIL PUTHENPURAYIL HOUSE, KUTTAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. ADV. SRI.P.FAZIL FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE PHOTOCOPY OF THE PLAINT IN O.S. NO.74 OF 2003 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA. EXHIBIT P2 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT IN O.S. NO.74 OF 2003 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA. EXHIBIT P3 TRUE PHOTOCOPY OF I.A. NO.2219 OF 2009 FILED IN O.S. NO.74 OF 2003 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA. EXHIBIT P4 TRUE PHOTOCOPY OF THE ORDER IN I.A. NO.2219 OF 2009. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.35150 of 2009 ==================================== Dated this the 11th day of August, 2010 J U D G M E N T Petitioner sued respondents for a decree for prohibitory injunction against trespassing into the suit property and using any portion of that property as a way or committing waste therein. Respondents contended that the suit property is part of a larger extent which was dedicated for use of respondents and other neighbouring property owners as a way. Respondents also raised, alternatively a claim of easement by way of grant over the disputed property. The suit was dismissed for default against which I am told by learned counsel, petitioner preferred an appeal which ended in a dismissal. Thereafter suit was restored to file in the year, 2009 on application of petitioner. Later came I.A. No.2219 of 2009 for amendment of the plaint to incorporate a prayer for recovery of possession. That application was opposed by respondents. It was contended that amendment if allowed would alter the nature and character of the suit and that plea sought to be incorporated by amendment runs counter to the claim of petitioner in the paint that he is in possession and enjoyment of suit property. Objection was upheld and the W.P(C) No.35150 of 2009 -: 2 :- application was dismissed vide Ext.P4, order. That is under challenge in this Writ Petition. It is contended on behalf of petitioner that finding of court below is not correct and that on the facts and circumstances amendment ought to have been allowed as it is necessary to adjudicate the dispute between parties and avoid multiplicity of suits. Learned counsel for respondents supported the order of the court below. 2. It is the principle of law that all amendments which are necessary for adjudication of dispute between parties shall be allowed except when it caused prejudice to the oppose party or altered nature and character of the suit. The object of allowing amendment is to prevent multiplicity of suits. True, petitioner claimed to be in possession of the suit property on the strength of title and accordingly sued for injunction. But now amendment sought for is to incorporate a prayer for recovery of possession. Learned Munsiff observed that Petitioner has no case that after institution of the suit respondents trespassed into the suit property and took possession. Even if it is so, it is not as if prayer for recovery of possession cannot be sought particularly since petitioner has sued for injunction based on his title and according to respondents, disputed property was dedicated as a W.P(C) No.35150 of 2009 -: 3 :- way. Alternatively it is contended that they have right of easement by way of grant over the said property. Even if it is assumed that recovery of possession is to be allowed it is well within the power of court to preserve right of way claimed by the respondents in case they are able to establish the same. I am not persuaded to think that amendment if allowed would alter nature and character of the suit. I am also persuaded to think that to prevent multiplicity of suits amendment of the plaint ought to have been allowed. Hence the order under challenge cannot be sustained. Resultantly, Writ Petition is allowed. Exhibit P4, order on I.A.No.2219 of 2009 in O.S. No.74 of 2003 is set aside and that application is allowed. Petitioner shall carry out the amendment within 14 (fourteen) days from the date of receipt of a copy of this judgment in the trial court or within such time as that court permits. Needless to say that respondents will get the opportunity to file additional written statement in answer to the amened plaint. THOMAS P. JOSEPH, JUDGE. vsv