IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 OP(C).NO. 309 OF 2010() ----------------------------------- OS.118/2009 OF MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER: -------------------- VISWAMBHARAN,S/O.KUMARAN,AGED 54 YEARS, THOZHUTHINKAL HOUSE, CHEMBANKUZHY KARA, NAERIAMANGALAM VILLAGE. BY ADV. SRI.PAUL K.VARGHESE RESPONDENT(S): ------------------------- JOSEPHKUTTY, S/O.THOMMAN, PLAPPUZHAYIL HOUSE, AGED 46 YEARS, CHEMBANKUZHY KARA, NERIAMANGALAM VILLAGE. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) NO.309 of 2010 ==================================== Dated this the 13th day of October, 2010 J U D G M E N T Plaintiff in O.S.No.118 of 2009 of the court of learned Munsiff, Muvattupuzha is the petitioner before me challenging Ext.P4, order refusing to allow amendment of plaint. Petitioner sued respondent for a decree for prohibitory injunction against the latter trespassing into the suit property described as 34 cents. Respondent contended that he is enjoying a right of way through eastern side of the property as recited in Ext.B1, prior document of title of petitioner and his wife. Parties went into evidence and the evidence of petitioner was over. At the time of evidence of respondent, he produced Ext.B1 (marked in the trial court) which is the prior document of title of petitioner and his wife which referred to a pathway on the side of property of petitioner and his wife. Thereon petitioner filed Ext.P3, application for amendment to exclude that pathway on the eastern side extending north-south from the property scheduled. Petitioner also stated that petitioner or wife has no objection in respondent using the said pathway. O.P(C) No.309 of 2010 -: 2 :- Learned Munsiff disallowed the application for amendment. Learned counsel has placed reliance on the decision in Eapen Antony v. Joseph (2009 [2] KLT 849) to contend that even a diligent client may not have been able to file the application for amendment before trial commenced for various reasons including that the mistake if any in the plaint or other document was not brought to the notice of the litigant and he came to know about the same only when he was confronted with his plea while in the box. 2. The proviso to Order VI Rule 17 of the Code of Civil Procedure (for short, “the Code”) states that once trial has commenced no amendment of pleadings shall be allowed except when the party seeking amendment, in spite of his due diligence was not able to raise the matter before commencement of trial. This Court in Eapen Antony v. Joseph (supra) has stated the circumstances under which even a diligent litigant may not be able to seek amendment of pleadings before trial commenced. But that decision has to be applied with reference to the facts and circumstances of each case and cannot be applied in every case to make the proviso to Order VI Rule 17 of the Code redundant and otiose. That I do not think is the purport of the O.P(C) No.309 of 2010 -: 3 :- decision in Eapen Antony v. Joseph (supra). 3. So far as the present case is concerned even in the written statement filed sufficiently early respondent has stated that he has a right of access through the eastern portion of the property of petitioner as stated in prior document of title of petitioner. Written statement was filed on 21.05.2009 and in spite of posting the case for steps no action was taken. Petitioner pursued with his contention that entire suit property belonged to him and his wife and that respondent has no right, interest in any portion of that property. Learned Munsiff has observed that amendment requested is not necessary to decide the dispute involved. I must also bear in mind that it is well within the power of the court to limit the relief that may be granted to the petitioner in respect of suit property other than the pathway if it is found that respondent has a right of access through such pathway. Court has the power and authority to mould reliefs if such a course is found necessary. In the above circumstances I am not persuaded to think that request for amendment ought to have been allowed by the trial court. Amendment is a matter within the discretionary power of the court. Unless that discretion is exercised in a capricious, arbitrary or perverse manner, no O.P(C) No.309 of 2010 -: 4 :- interference is warranted. I make it clear that it will also be open to the petitioner to challenge correctness of Ext.P4, order in an appeal that may be preferred by petitioner against judgment and decree in case the decision goes against petitioner and his wife. Petition is dismissed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv