IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 WP(C).No. 19771 of 2010(O) -------------------------- OS.1585/2008 of I ADDL.MUNSIFF COURT,THIRUVANANTHAPURAM .................... PETITIONER(S): --------------- JAYAKUMARI W/O.SADHASIVAN NAIR, AGED 44 YEARS, SUNIL BHAVAN,MARUTHOOR, VATTAPARA THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV SMT.LIGEY ANTONY RESPONDENT(S): --------------- PRABHAKARAN NAIR, S/O.VASUDEVAN PILLAI, KIZHAKKEKARA, PUTHENVEEDU, KATTELA PO, CHERUVAKKAL VILLAGE, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.19771/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.1585/2008 EXT.P2 TRUE COPY OF WRITTEN STATEMENT FILED IN OS 1585/2008 EXT.P3 TRUE COPY OF IA NO.7858/2009 IN OS NO.1585/2008 EXT.P4 TRUE COPY OF STATEMENT OF OBJECTION DATED 15.9.2009 FILED BY THE DEFENDANT AGAINST EXT.P3 COMMISSION APPLICATION EXT.P5 TRUE COPY OF AMENDMENT APPLICATION FILED AS IA NO.11373/2009 IN OS 1585/2008 EXT.P6 TRUE COPY OF STATEMENT OF OBJECTION SUBMITTED BY THE DEFENDANT DATED 8.12.2009 AGAINST THE AMENDMENT APPLICATION EXT.P7 TRUE COPY OF THE ORDER DATED 8.12.2009 IN IA NO.7858/2009 IN OS 1585/2008 ON THE FILE OF FIRST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM EXT.P8 TRUE COPY OF ORDER DATED 8.12.2009 IN IA NO.11373/2009 IN OS 1585/2008 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.19771 of 2010 -------------------------------------- Dated this the 22nd day of July, 2010. JUDGMENT Respondent was served on this petition but there is no response. I heard learned counsel for petitioner. 2. This Writ Petition is in challenge of Exts.P7 and P8, orders passed by learned Additional Munsiff-I, Thiruvananthapuram. Petitioner sued the respondent for fixation of northern boundary of the suit property allegedly belonging to the petitioner. In the course of suit petitioner filed Ext.P3, application for appointment of an Advocate Commissioner to identify the northern boundary of suit property with the help of a Surveyor. While so, petitioner filed Ext.P5, application for amendment of plaint to incorporate B schedule property allegedly belonging to the respondent. Learned Munsiff vide Ext.P8, order dismissed Ext.P5, application stating that B schedule sought to be incorporated in the plaint schedule is not incorporated in Ext.P5, application (I.A.No.11373 of 2009). Ext.P3, application was dismissed vide Ext.P7, order stating that petitioner has failed to incorporate property of respondent in plaint schedule and inspite of time granted appropriate application has not been preferred. It is contended that this being a suit for fixation of boundary it was not an absolute necessity to incorporate property of respondent in plaint schedule as boundary WP(C) No.19771/2010 2 of the suit property can be fixed on the basis of a properly measured plan obtained through the Surveyor. So far as Ext.P5, application is concerned learned counsel prays for an opportunity to file an appropriate application. 3. It is not as if for granting a decree fixing boundary of suit property allegedly belonging to petitioner, it is essential that property of respondent also is scheduled. But petitioner has chosen to file Ext.P5, application to amend the plaint. May be, the description of property of respondent in the plaint schedule is helpful in deciding the controversy. Hence I do not think it necessary to interfere with the view expressed by learned Munsiff that property of respondent also is to be incorporated. Ext.P5, application has been dismissed for the technical reason that plaint B schedule allegedly belonging to respondent was not scheduled in that application. Learned Munsiff, rather than dismissing the application straight away for a technical reason could have asked petitioner to amend Ext.P5, application. Having regard to the facts and circumstances and nature of reliefs sought for by petitioner I consider it necessary to permit petitioner to file a fresh application notwithstanding that Ext.P5, application has been dismissed vide Ext.P8, order. 4. So far as Ext.P3, application for appointment of Advocate Commissioner is concerned it is necessary that an Advocate Commissioner inspects the property with the assistance of a Surveyor and identifies the boundaries to be fixed. Dismissal of Ext.P3, application is for the reason that WP(C) No.19771/2010 3 property of respondent has not been scheduled in the plaint. Regarding that, I stated that petitioner should get an opportunity to file a proper application. In view of that Ext.P7, order is liable to be set aside. Resultantly, this Writ Petition is allowed in the following lines: i. While no interference is made with reference to Ext.P8, order dismissing Ext.P5, application petitioner is permitted to file a fresh application for amendment of plaint incorporating the schedule of property also as circumstances warranted. Such application shall be filed within one month from this day. ii. Ext.P7, order dismissing Ext.P3, application is set aside and Ext.P3 is remitted to the court below for fresh decision after application for amendment referred to in clause (i) is filed and disposed of by learned Munsiff. THOMAS P.JOSEPH, Judge. cks