IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 4573 of 2007(T) ------------------------- OS.92/2003 of MUNSIFF COURT, KODUNGALLUR .................... PETITIONER(S): --------------- GOURIKUTTY AMMA, AGED 70 YEARS, D/O.ALLAMPARAMBATH PARUKUTTY AMMA, LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.P.K.SAJEEV RESPONDENT(S): --------------- 1. RAMANI, W/O.CHAMBANEZHATH GOPI, LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK. 2. GOPI, S/O.CHEMBANEZHATH KRISHNAN, LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK. 3. SUDHEER, S/O.CHEMBANEZHATH GOPI, LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK. ADV. SRI.N.P.SAMUEL FOR R1,2&3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPPENDIX PETITIONER'S EXHIBITS:- P1: True copy of the plaint dt. 29-1-2003 in O.S.No.92/2003. P2; True copy of the written statement dt. 26-2-2003 in O.S.No.92/2003. P3: True copy of the report submitted by the Advocate Commissioner. P4: True copy of the affidavit and application I.A.No.160/2007 in O.S.No.92/2003 dt. 22-1-2007. P5: True copy of the affidavit and application I.A.No.159/2007 in O.S.No.82/03 dt. 22-1-2007. P6: True copy of the order dt. 27-1-2007 in I.A.No.160/2007 in O.S.No.92/2003. P7: True copy of the order dt. 27-1-2007 in I.A.No.159/07 in O.S.No.92/2003. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 4573 of 2007 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 25th day of September, 2009 JUDGMENT This is a writ petition filed by the plaintiff in O.S. No. 92 of 2003 of the Munsiff's Court, Kodungallur seeking to set aside Ext.P6 order passed by the same court. 2. The petitioner/plaintiff filed O.S. No.92 of 2003 before the Munsiff's Court, Kodungallur for fixation of boundary and prohibitory injunction. The Commissioner inspected the properties and filed his report Ext.P5. He has reported that there is a difference of one metre between the existing boundary and the boundary fixed by the Taluk Surveyor. It is on the western side of the boundary. The plaintiff filed I.A. No.160 of 2007 before the Munsiff's Court, Kodungallur, seeking to amend the plaint schedule to include this property and also to implead the office bearers of one Sangham, in whose possession the portion of this property was. By the impugned order, the court below dismissed the application. Now the plaintiff has come up in revision to set aside the order. 3. The learned counsel appearing for the respondents/defendants W.P.(C) No. 4573/07 2 argued that since the entire evidence in this case was over, there is a specific bar under the proviso to Order VI Rule 17 of the Code of Civil Procedure in allowing amendment after the trial has commenced and that therefore, the court below is perfectly justified in dismissing the petition. 4. It is pertinent to note that the Commissioner has filed his report as early as on 11-7-2006. After closing the evidence on both sides, the petitioner/plaintiff had filed I.A.No.160 of 2007 on 22-1-2007 seeking amendment of the plaint. No reason was stated for the said delay in filing the above application. That apart proviso to Order VI Rule 17 of the Code of Civil Procedure provides that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the present case the plaintiff has not explained why he did not file the amendment application in time. In these circumstances, the court below is perfectly justified in dismissing the application for amendment. There is no illegality or error in the impugned order. That being so, the writ petition has to be dismissed. The learned counsel for the petitioner submits that the petitioner may be permitted to file a separate suit for recovery of the property between the existing boundary and the boundary fixed by the Taluk Surveyor. W.P.(C) No. 4573/07 3 5. Therefore, the writ petition is dismissed with liberty to the plaintiff to file a separate suit, if he chooses to recover the property between the existing boundary of the plaint schedule and the boundary fixed by the Taluk Surveyor, in accordance with law. It is made clear that even if the Commissioner has reported that the boundary is west of the existing boundary, the court below is at liberty to fix the existing boundary of the plaint schedule property. P.Q.BARKATH ALI, JUDGE. mn.