IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 WP(C).NO. 17931 OF 2010(O) ---------------------------------------- OS.171/2006 OF II ADDL.M.C.,TRIVANDRUM .................... PETITIONER(S): COUNTER PETITIONER/DEFENDANT -------------------------------------------------------------------------- ANNIE MASCRENE, AGED 57, D/O.JOSEPH MASCRENE, RESIDING AT T.C.15/1660, MASCRENE LANE, THYCAUD VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.P.PUSHPARAJAN SRI.MANJU ANTONEY RESPONDENT(S): PETITIONER/PLAINTIFF ------------------------------------------------------------- G.R.SREERAJ, S/O.RADHA, RESIDING AT NEETHI, T.C.25/3233/3, AMBUJAVILASOM ROAD, VANCHIYOOR, THIRUVANANTHAPURAM. ADV. SMT.M.HEMALATHA FOR R1 SRI.S.PADMADAS RANJAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE SUPREME COURT ORDER DATED 2.3.2009. EXHIBIT P2 TRUE COPY OF THE ORDER IN I.A. NO.3641 OF 2010 IN O.S. NO.171 OF 2006 DATED 3.6.2010 OF THE SECOND ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM. EXHIBIT P4 TRUE COPY OF THE AMENDMENT APPLICATION DATED 31.5.2009 IN O.S. NO.171 OF 2006 FILED BY THE PLAINTIFF. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.17931 of 2010 ==================================== Dated this the 11th day of June, 2010 J U D G M E N T Petitioner before me is the defendant in O.S.No.171 of 2006 of the court of learned Additional Munsiff-II, Thiruvananthapuram. That is a suit filed by respondent seeking partition of suit properties. Petitioner filed written statement contending that respondent is not entitled to get partition of the property as claimed. Suit was posted for trial in the list on 03.06.2010. In the meantime respondent filed I.A. No.3641 of 2010 for amendment of plaint to delete the words “lineal descendants”. That application came up for hearing on 03.06.010. As the learned counsel for petitioner puts it, he requested 3 days’ time to file counter on the application. But learned Munsiff did not grant time as requested, heard counsel on both sides, passed the impugned order on the same day allowing amendment as prayed for but on condition of payment of costs of Rs.300/-. Grievance of petitioner is that respondent was not entitled to amend the plaint in the way sought for in I.A. No.3641 of 2010 since claim on that count had already become barred by limitation. It is also the contention of learned W.P(C) No.17931 of 2010 -: 2 :- counsel that it is without giving sufficient time to file counter that application was allowed even after the case was included in the list. Learned counsel contends that an illegality is committed in the matter of carrying out the amendment also since going by Ext.P2, order under challenge cost was to be paid on or before 09.06.2010 failing which petition would stand dismissed. On 05.06.2010 alone on account of payment of costs learned Munsiff allowed I.A. No.3641 of 2010 but amendment of the plaint has been carried out even as early as on 03.06.2010. Learned counsel for respondent while supporting the order under challenge contended that costs as ordered by the learned Munsiff was paid by the respondent and received by petitioner and hence there is no reason to challenge the impugned order. It is also submitted by learned counsel that proof affidavit of respondent along with relevant documents has been filed in the trial court on 09.06.2010 and documents have been marked as Exts.A1 to A8. 2. It is true that when I.A. No.3641 of 2010 came up for hearing on 03.06.2010 that application was allowed. Learned Munsiff could have granted sometime to file counter. But it is not as if the order was passed without hearing petitioner/defendant No.2. Learned Munsiff has adverted to the objection raised by W.P(C) No.17931 of 2010 -: 3 :- learned counsel for petitioner to the application and it is after considering that objection that the application was allowed. It is not disputed before me that costs ordered as per the impugned order was received by the petitioner on 03.06.2010. Having done that there is no reason why petitioner should complain about correctness of the impugned order dated 03.06.2010. Hence challenge to Ext.P2, order cannot stand. No doubt, on amendment of the plaint petitioner is entitled to file additional written statement in answer to the amended plaint and if necessary additional issues are also be raised. If not given petitioner should be given opportunity to file additional written statement. Trial of the case can continue only after petitioner is given opportunity to file additional written statement. 3. So far as the contention of learned counsel for petitioner that even before learned Munsiff allowed the application for amendment on 05.06.2010, amendment has been carried out on 03.06.2010 is concerned it is true that on payment of costs on 03.0.2010 application was formally allowed only on 05.06.2010 and amendment was carried out even before 05.06.2010. But I find from the impugned order (Ext.P2) dated W.P(C) No.17931 of 2010 -: 4 :- 03.06.2010 that application was allowed on condition of payment of costs which the respondent complied with on 05.06.010 and on that impression that plaint was amended on 03.06.2010 though final order on I.A.No.3641 of 2010 was passed only on 05.06.2010. I consider it only as an irregularity which is not in any way fatal. But learned Munsiff should have ensured that such irregularities did not happen. In fact, the order itself is a bit confusing. 4. Having regard to the facts and circumstances of the case I direct that petitioner shall be given opportunity to file additional written statement before trial is proceeded with. Resultantly, Writ Petition is dismissed. But petitioner is granted two weeks' time from the date of receipt of a copy of this judgment in the trial court to file additional written statement in answer to the amendment to the plaint. If necessary learned Munsiff shall also raise additional issues. Trial of the case shall proceed only thereafter. THOMAS P. JOSEPH, JUDGE. vsv