IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 WP(C).No. 311 of 2009(K) ------------------------ OS.324/2008 of PRL.M.C., KOTTAYAM .................... PETITIONER(S): --------------- 1. M.P.JOSEPH, MANAYIL HOUSE, KOOROPPADA, LAKKATTOOR, KOTTAYAM DISTRICT. 2. PHILIPOSE, MANAYIL HOUSE, KOOROPPADA, LAKKATTOOR, KOTTAYAM DISTRICT. 3. M.P.JAMES, MANAYIL HOUSE, KOOROPPADA, LAKKATTOOR, KOTTAYAM DISTRICT. BY ADV. SRI.K.GOPALAKRISHNA KURUP SRI.S.MANU RESPONDENT(S): -------------------- P.V.JOSEPH, PLAPARAMBIL HOUSE, KOOROPPADA, LAKKATTOOR KARA, KOTTAYAM DISTRICT. ADV. SRI.LIJI.J.VADAKEDOM FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 311 of 2009(K) PETITIONERS EXHIBITS: Ext.P1: COPY OF THE PLAINT IN O.S.NO.324/08 OF PRINCIPAL MUSIFF”S COURT, KOTTAYAM. EXT.P2: COPY OF THE WRITTEN STATEMENT IN O.S.NO.324/08 OF THE MUNSIFF”S COURT, KOTTAYAM EXT.P3: COPY OF THE APPLICATION FOR AMENDMENT IN I.A.2530/08 IN O.S.324/08 OF MUNSIFF”S COURT, KOTTAYAM. EXT.P4: COPY OF THE OBJECTION TO THE APPLICATION FOR AMENDMENT. EXT.P5: COPY OF THE ORDER I I.A.2530/08 IN O.S.324/08 OF PRINCIPAL MUNSIFF'S COURT, KOTTAYAM. /True copy/ P.A. To Judge sou. P. BHAVADASAN, J --------------------------- W.P.(C).No.311 OF 2009 ----------------------------------- Dated this the 17th day of March, 2010 J U D G M E N T The court below allowed the amendment of the plaint overlooking the objections filed by the defendant. The defendant is aggrieved and has come up before this court. 2. The petitioners are the defendants in O.S.324/08. The suit was instituted for permanent prohibitory injunction. The second defendant is the father of defendants 1 and 3. The dispute in the suit is related to a path way. The plaintiff claimed a right of easement by necessity also to use the way. The plaintiff initially had sought relief only against first defendant and his pleadings were directed to that effect. 3. In the written statement filed by the defendants, it was pointed out that the road in question exclusively belonged to the 2nd defendant. It was for the exclusive use of the 2nd defendant. No agreement or assurance was given to the plaintiff regarding the way. 4. In the light of the above stand taken by the defendant W.P.(c) No.311/09 2 amendment of the plaint became necessary. A petition to amend the plaint incorporating additional pleadings and relief was made. 5. The amendment application was strongly opposed by the defendants. According to them, it was highly belated cause of action is different and they are prejudiced. 6. The court below by cryptic order allowed the application on payment of cost. 7. The learned counsel for the petitioner contended that the amendment was sought belatedly and court below ought not to have allowed the same. Amendment was sought after issue had been raised with the intention of defeating the defendants. 8. There is some substances in the complaint. The court below has not adverted to the nature of amendment sought for in the application. In fact no reasons are given in the order. On that ground the matter actually has to be sent back to lower court for fresh consideration. 9. On going through Ext.P3 it is seen that the amendment sought for became necessary in the light of contentions in the written statement. 10. The claim of the defendants that the nature and character of the suit is changed has no substance. The cause of action remains the same and the nature of the suit also remains W.P.(c) No.311/09 3 the same. Of course relief are sought for against all defendants also. 11. It is true, going by the proviso to order VI rule 17 after the trial has commenced, normally amendments shall not be allowed. But that is not an invariable rule. It has been held in a series of decisions of the apex court that in order to avoid multiplicity of suits and for a proper adjudication of the right involved, amendment can be allowed even if trial of the suit has commenced. 12. The amendment sought for is for meeting the above requirements. The court below has choose to exercise its discretion in favour of the plaintiff. Even though the order is cryptic, it is not necessary to remand the matter back since no injustice has been done. 13. No illegality, impropriety or irregularity would be pointed out in the order. No interference is called for. The writ petition is without merit and it is accordingly dismissed. P. BHAVADASAN, JUDGE. Sou.