IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 WP(C).No. 35832 of 2008(N) -------------------------------------- AGAINST THE ORDER DATED 02/07/2008 IN IA 70/08 IN OS.162/2003 of MUNSIFF COURT, WADAKKANCHERRY .................... PETITIONER(S): ---------------------- PRABHAKARA MENON,S/O.MELAPPATT GOVINDAN NAIR, AGED 75 YEARS, OTTUPARA DESOM, KUMARANELLUR VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. MR.SANTHEEP ANKARATH MR.V.C.MADHAVANKUTTY RESPONDENT(S): ------------------------- JEEMON, S/O. PAUL, KONIKKARA HOUSE, OTTUPARA DESOM, KUMARANELLUR VILLAGE TALAPPILY TALUK, THRISSUR DISTRICT. BY ADV. MR.SHEJI P.ABRAHAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 35832/2008-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT DATED 31/03/2003 IN O.S.162/2003 FILED BY THE RESPONDENT HEREIN BEFORE THE MUNSIFF'S COURT, WADAKKANCHERRY. EXT.P2: COPY OF THE WRITTEN STATEMENT DATED 14/07/2003 IN O.S.162/2003 FILED BY THE PETITIONER HEREIN BEFORE THE MUNSIFF'S COURT, WADAKKANCHERRY. EXT.P3: COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION DATED 11/09/2007 (I.A. NO.70/2008) FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, WADAKKANCHERRY. EXT.P4: COPY OF THE COUNTER DATED 14/01/2008 IN I.A. NO.70/2008 FILED BEFORE THE MUNSIFF'S COURT, WADKKANCHERRY. EXT.P5: COPY OF THE ORDER DATED 02/07/2008 IN I.A.70/08 PASSED BY MUNSIFF'S COURT, WADAKKANCHERRY. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.35832 OF 2008 (N) ----------------------------------- Dated this the 11th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. to call for the records leading to Ext.P5 order and set aside the same. ii. to issue a writ of mandamus or other appropriate writ, order or direction directing the Munsiff Court, WadakKanchery to allow Ext.P3 application. iii. to issue such other orders as are deemed fit and proper in the circumstances of the case. 2. Petitioner is the defendant in O.S.No.162/2003 on the file of the Munsiff Court, Wadakkanchery and the respondent is the plaintiff. Suit was one for perpetual prohibitory WPC.35832/08 2 injunction restraining the defendant from trespassing upon the plaint schedule property or interfering with the peaceful possession and enjoyment of the property by the plaintiff. Ext.P1 is the copy of the plaint in the above suit. Resisting the suit claim, the defendant filed a written statement in which he raised a counter claim for a decree for fixing boundary on the eastern portion of his property (scheduled), and also for an injunction against the plaintiff from interfering with his possession and enjoyment over that property. An Advocate Commissioner deputed by the court with the assistance of a Surveyor prepared a report and plan after measuring the plaint property of the plaintiff and that of the defendant. Pursuant to filing of the commission report and plan, the petitioner/defendant moved for amending his written statement so as to make modifications in the counter claim already made seeking an additional relief of recovery of possession setting forth a case that on measurement of the property, it has been found that some portions of the property under his title deed are with the plaintiff. The learned Munsiff, after considering the materials produced and also WPC.35832/08 3 hearing the counsel on both sides, dismissed the amendment application moved by the defendant holding that it will change the character of the suit, and further, allowing the amendment application will cause prejudice to the plaintiff. Impeaching the correctness and propriety of that order, petitioner has filed this writ petition invoking the supervisory jurisdiction of this Court vested under Article 227 of the Constitution of India. 3. I heard the counsel on both sides and also perused the materials produced alongwith the writ petition. Ext.P2 is the copy of the written statement filed by the defendant. The case advanced by the defendant in his written statement was that an age old boundary wall separates the two properties that of the plaintiff and the defendant. Allegations raised by the plaintiff that the boundary wall is attempted to be demolished by the defendant is stoutly denied in the written statement. The written statement reveals in unmistakable terms that the defendant's specific contention was that the age old boundary separated the two properties. Now after WPC.35832/08 4 measurement of the properties by way of the proposed amendment filed by the defendant, it is seen, the specific admission made in his previous written statement is sought to be annulled retracting from the previous statement made. What is seen from the perusal of the plaint as well as the written statement of the defendant is that the dispute was with respect to ownership over that compound wall separating their properties, with the plaintiff claiming exclusive ownership and that being disputed by the defendant contending that the wall also belongs to him. Nowhere, in the written statement, a whisper is made that beyond the boundary wall on the eastern side his property is extended or he has any right or possession. Now after the measurement of the properties, the counter claim made in the written statement is sought to be amended introducing a new case that as per his documents, he has right over the properties even beyond the eastern side of the boundary wall separating the properties of the plaintiff and the defendant. Having regard to the fact that a counter claim can be moved by a contesting defendant before filing of written statement or WPC.35832/08 5 within the extended time granted, and also taking note of the nature of the contentions raised in the previous written statement and also the new case sought to be introduced, I find the additional relief claimed of recovery of possession by way of the amendment is not at all entertainable. Though I find that the reasons set out by the learned Munsiff for disallowing the amendment application are not appealing, still, on the facts presented, for different reasons adverted to above, I find the dismissal of the amendment application does not warrant any interference in the facts of the case. Writ petition is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009