IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 OP(C).No. 3061 of 2011(O) -------------------------------- AGAINST THE ORDER DATED 19/07/2011 IN IA 1252/2011 IN OS.91/2009 of MUNSIFF COURT, THALASSERY .................... PETITIONERS: ---------------- 1. K.HAREENDRAN, S/O.LATE DAMODARAN, AGED 44 YEARS, RESIDING AT SANTHI NILAYAM, PERUNTHATTIL, THALASSERY TALUK, KANNUR. 2. K.RAMANI, W/O.LATE DAMODHARAN, AGED 65 YEARS, RESIDING AT SANTHI NILAYAM, PERUNTHATTIL, THALASSERY TALUK, KANNUR. BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.RAJESH V.NAIR RESPONDENT(S): -------------------- K.RAGHAVAN, S/O.KUNHAMBU, AGED 69 YEARS, SREE NILAYAM, PERUNTHATTIL, THALASSERY TALUK, KANNUR. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 3061/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. 91/09 FILED BEFORE MUNSIFF COURT THALASSERY. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT. P3: COPY OF COMMISSION REPORT & PLAN FILED IN OS.91/09 OF MUNSIFF COURT THALASSERY. P4: COPY OF THE I.A.1252/2011 TO AMEND THE 'B' SCHEDULE PROPERTY MADE IN O.S.91/09 OF MUNSIFF COURT THALASSERY. P5: COPY OF THE COUNTER FILED BY RESPONDENT IN I.A.1252/2011. P6: COPY OF THE I.A. 1252/2011 IN O.S.91/09 FILED BY THE PETITIONERS BEFORE MUNSIFF COURT THALASSERY ALONG WITH DOCKET ORDER DATED 19/07/2011 WITH TYPED COPY OF ORDER DATED 19/07/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3061 of 2011 ==================================== Dated this the 21st day of October, 2011 J U D G M E N T Respondent remains absent in spite of being served. 2. Plaintiff in O.S. No.91 of 2009 of the court of learned Munsiff, Thalassery is the petitioner, challenging the order dated 19.07.2011 on I.A. No.1252 of 2011. That was an application for amendment of plaint to correct the description of plaint B schedule in tune with the report and plan submitted by the Advocate Commissioner. That application was resisted by the respondent. Learned Munsiff by Ext.P6, order dismissed that application stating that learned Munsiff is not satisfied with the contention of petitioner, petitioner must have a definite case and that he cannot change his case in accordance with the report and plan. Learned Munsiff also thought of a contingency as to what would happen if “on the next time Commissioner changes his measurement and petitioner cannot again amend his plaint in that way”. 3. Learned counsel contends that request of petitioner is only to amend plaint B schedule property to make it in tune with the report and plan of the Advocate Commissioner. Exhibit P3 is O.P(C) No.3061 of 2011 -: 2 :- the report submitted by the Advocate Commissioner. There, Commissioner has stated length and width of plaint B schedule. Petitioner wants plaint B schedule property where the length and width of way is given as 15 metres and 5 feet respectively, to be corrected in tune with the report of the Advocate Commissioner. 4. I am not inclined to think that if the amendment sought for is allowed that would alter the nature and character of the suit. Petitioner has prayed for a decree for prohibitory injunction to restrain the respondent or his men from blocking plaint B schedule way. Since amendment is sought before commencement of trial question of prejudice to respondent also does not arise. It is not as if the court is granting a decree as prayed for by the petitioner regarding plaint B schedule as the Advocate Commissioner has reported. Viewed in that line I do not find reason to disallow the prayer for amendment since amendment is required to settle the real dispute between the parties. It is open to the respondent to file additional written statement in answer to the amended plaint. Resultantly, Original Petition is allowed. Exhibit P6, order is set aside. I.A. No.1252 of 2011 in O.S. No.91 of 2009 of the court of learned Munsiff, Thalassery is allowed. Petitioner shall carry O.P(C) No.3061 of 2011 -: 3 :- out the amendment within two weeks from the date on which a copy of this judgment is received in the trial court. On carrying out the amendment as aforesaid, respondent shall be given opportunity to file additional written statement in answer to the amended plaint. THOMAS P. JOSEPH, JUDGE. vsv