IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 WP(C).No. 3224 of 2009(H) ------------------------- AGAINST THE ORDER DATED 19/12 / 2008 IN IA 10472/2008 IN OS.932/2007 of II ADDL.MUNSIFF'S COURT,THRISSUR .................... PETITIONERS/PLAINTIFFS ------------------------- 1. RAVEENDRAN, S/O.GOVINDAN, PUTHUPPALLY HOUSE, MANGATTUKARA DESOM, THRISSUR TALUK. 2. BHUVANESWARI, D/O.THIRUNELLI SUBRAMANIAN, MANGATTUKARA DESOM, THRISSUR TALUK. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.S.S.HUSSAIN SRI.P.K.NIJOY RESPONDENT(S): DEFENDANTS ------------------------- 1. MANGATTUKARA SREE RAMASWAMY KSHETHRA SAMRAKSHANA SAMITHY, MANGATTUKARA, POST ANTHIKKAD. 2. BHASKARAN, MENOTHUPARAMBIL HOUSE, POST ANTHIKKAD. (PRESIDENT, MANGATTUKARA SREE RAMASWAMY KSHETHRA SAMRAKSHANA SAMITHY). 3. RAJAN, S/O.VETTIYATTIL KUMARAN,SECRETARY MANGATTUKARA SREE RAMASWAMY KSHETHRA SAMRAKSHANA SAMITHY, MANGATTUKARA. ADV. SRI.K.K.JAYASOORYA FOR R1-3 SRI.LAL K.JOSEPH FOR R1-3 SRI.A.A.ZIYAD RAHMAN FOR R1-3 SMT.SHEENA SAMUEL FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.3224/2009 APPENDIX PETITIONERS' EXTS: EXT.P1 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER IN O.S.NO.923/2007 OF THE MUNSIFF'S COURT, THRISSUR. EXT.P2 TRUE COPY OF I.A.NO.10472/08 IN IN O.S.NO.923/2007 OF THE MUNSIFF'S COURT, THRISSUR. EXT.P3 TRUE COPY OF THE ORDER DTD.19/12/2008 IN I.A.NO.10472/08 IN IN O.S.NO.923/2007 OF THE MUNSIFF'S COURT, THRISSUR. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 3224 OF 2009 ------------------------------- DATED THIS THE 29TH DAY OF SEPTEMBER, 2010 JUDGMENT The plaintiffs in O.S. No.932/07 are the petitioners herein. The prayer in the writ petition is to set aside Ext.P3 order. Ext.P3 is the order passed by the II Additional Munsiff's Court, Thrissur in I.A.No.10472/08 filed under Order VI Rule 17 CPC for amendment of the plaint. Plaint A schedule property belongs to the plaintiffs. Plaint B schedule is a pathway situated on the southern side of the plaint A schedule. A Commissioner was deputed to measure the plaint schedule properties. The commissioner reported that there is a small strip of land lying in between plaint A and B schedule properties and that it belongs to the respondent- Devaswom. It is the plaintiff's case that the measurement and report of the Commissioner are incorrect that the small strip of land identified by the commissioner is part and parcel of plaint A schedule property and that following the possession and enjoyment -2- WP(C).No.3224/2009 of the predecessors-in-interest the plaintiffs are in possession of the said portion also for the last more than 50 years. Based on the commissioner's report the plaintiff wanted to incorporate the words “southern side of” instead of “southern boundary of”. The respondents opposed the prayer. According to the respondents, the plaintiff have described plaint A schedule property as extending upto B schedule pathway, that there is a small strip of land in between plaint A and B schedule properties and that it belonged to the temple. The application for amendment is filed belatedly and therefore the same has to be dismissed. It is also contended that the petitioners' attempt is to grab the property of the temple, which is situated in between the plaint A and B schedule properties and that the proposed amendment will change the nature and character of the suit. 2. The court below by Ext.P3 order dismissed the application for amendment. In the plaint, the petitioners have pleaded that plaint A schedule extends upto the B schedule property -3- WP(C).No.3224/2009 and they have described the plaint B schedule as lying on the southern side of the plaint A schedule property. The Commissioner reported that there is a small strip of land lying in between plaint A and B schedule properties which belongs to the Devaswom. The definite case of the plaintiff is that the entire extent upto plaint B schedule pathway is part and parcel of plaint A schedule property which belongs to them. The learned Munsiff observed that the plaintiffs have taken a stand that the property lying in between plaint A and B schedule properties identified by the Commissioner is part and parcel of plaint A schedule property and that they are in possession and enjoyment of the property for the last more than 50 years and that the stand taken by the plaintiffs is inconsistent with their earlier pleadings that the plaint A schedule take in the extent of property covered by the said deed only and on the immediate southern side of that property the B schedule pathway lies. On going through the facts and circumstances of the case, I do not think that such observation of the court below is correct. The -4- WP(C).No.3224/2009 plaintiffs' stand is that plaint A schedule extends upto plaint B schedule pathway. In fact the amendment sought for is on the basis of the Commissioner's report. The Commissioner has reported that there is a small strip of land in between plaint A and B schedule properties which belongs to the Devaswom. The plaintiffs wanted to amend the plaint incorporating the words “southern side of” instead of “southern boundary of”. Going by the pleadings in the plaint, the Commissioner's report and the averments in the affidavit filed in support of the petition for amendment, it cannot be said that the plaintiffs have taken an inconsistent stand with their earlier pleadings. The observation of the learned Munsiff to that effect is wrong. The contention of the defendants that the amendment will change the character of the suit is also not correct. The change sought for by the proposed amendment will not change the nature and character of the suit. The learned Munsiff failed to appreciate the scope of amendment in the right perspective. 3. In the circumstances, the dismissal of the petition -5- WP(C).No.3224/2009 for amendment is not justified. Ext.P3 order is therefore set aside. I.A.No.10472/08 is allowed. The plaintiffs shall carry out the amendment within a period of two weeks from today. Writ Petition is allowed as above. HARUN-UL-RASHID, Judge. kcv. -6- WP(C).No.3224/2009