IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 WP(C).No. 31650 of 2008(P) -------------------------------------- OS.NO.63/2005 OF MUNSIFF COURT, VADAKKANCHERRY. .................... PETITIONER: ------------------- JOHNY ,S/O. THER MADAM PARANHJUNNY, AGED 63 YEARS, MANALI DESOM, CHERANELLUR VILLAGE, TALAPPILLY TALUK. BY ADVS. MR.A.T.ANILKUMAR, MR.K.MATHEW FRANCIS. RESPONDENTS: ------------------------ 1. JOSE, S/O. THER MADAM PARANHJUNNY, MANLAI DESOM, CHERANELLUR VILLAGE, TALAPPILLY TALUK. 2. FRANCIS, S/O. JOSE, MANLAI DESOM, CHERANELLUR VILLAGE, TALAPPILLY TALUK. R1 & R2 BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, ADVS. MR.T.C.SURESH MENON, MR.JIBU P THOMAS, MR.P.S.APPU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.31650/2008-P: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 63/2005. EXT.P.2: COPY OF THE WRITTEN STATEMENT IN O.S. NO. 63/2005. EXT.P.3: COPY OF THE AMENDMENT APPLICATION. EXT.P.4: COPY OF THE DISMISSAL ORDER IN I.A. NO. 1771/07 DTD. 23/06/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.31650 OF 2008 -------------------------- Dated this the 12th day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the entire records leading to Ext.P4 and quash the same by issuing a writ a certiorari or any other appropriate order or direction. ii) Set aside Ext.P4 order and allow the prayer for declaration sought in I.A No.1771/2007 in O.S No.63/2005. iii) Grant such other relief which are just and necessary in the interest of justice. 2. Petitioner is the plaintiff in O.S No.63 of 2005 on the file of Munsiff Court, Vadakanchery. Suit was filed for a decree of perpetual prohibitory injunction, and the W.P.(C).No.31650 OF 2009 Page numbers respondents are the defendants. Resisting the suit claim, the defendants filed a written statement contending that they are in possession of the plaint property. Plaintiff then applied for an amendment to seek additional relief of declaration of title and recovery of possession. That amendment was objected to by the defendants filing objections. The learned Munsiff after hearing both sides declined the amendment sought for vide Ext.P4 order. Propriety and correctness of Ext.P4 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Proposed amendment was declined by the court below under the impugned order, according to the learned counsel for the petitioner, without taking into account the need and necessity for incorporating W.P.(C).No.31650 OF 2009 Page numbers such an amendment for a proper adjudication of the suit and its fair disposal. The reasons given under the order for turning down the amendment sought for, it is submitted, are not correct. The learned counsel for the respondents pointing out that in the writ petition, petitioner/plaintiff has confined his challenges against Ext.P4 order only in respect of the amendment declined as to the declaration of title sought for, but not relating to recovery of possession, submitted that, if at all the amendment is found allowable in reversal of Ext.P4 order passed by the court below, it may be allowed in respect of the amendment relating to declaration of title alone. Perusing Ext.P4 order, challenge impugned in the writ petition, I find that the learned Munsiff was not correct in stating that by allowing the proposed amendment, the character of the suit will change. When the decree of injunction sought by the plaintiff, is W.P.(C).No.31650 OF 2009 Page numbers challenged by the defendants disputing his right over the property contending that they are in possession it may be become necessary for the plaintiff to prove his title over the property as well, for which, an amendment of the suit for declaration of his title may become essential. Amendments are intended to resolve the real controversies arising in a lis between the parties, and where it is so found essential for a fair adjudication of the dismissal, needless to point out, such amendment has to be allowed to avoid multiplicity of proceedings and to advance justice. Ext.P4 order in the given facts of the case cannot be sustained. True, the petitioner in the writ petition has stated that with respect to the amendment sought for, he is interested only in canvassing the amendment for declaration of title but not of recovery of possession. That can be canvassed by the respondents/defendants before the W.P.(C).No.31650 OF 2009 Page numbers court below to consider as to what extent the amendment can be allowed. Setting aside Ext.P4 order, I direct the court below to consider Ext.P3 amendment application moved by the plaintiff taking note of the observations made above, and dispose it in accordance with law. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv