IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 WP(C).No. 31441 of 2009(O) ------------------------------------ OS.145/2008 of I ADDL.M.C.,NEYYATTINKARA .................... PETITIONER(S): --------------------- 1. KESAVAN SUBRAHMANYAN, KESAVA NILAYAM, POOZHIKUNNU, KARUMAN DESOM, NEMAM PAKUTHY. 2. ARUNDHATHI VASANTHI, KESAVA NILAYAM, POOZHIKUNNU, KARUMAN DESOM, NEMAM PAKUTHY. 3. ARUNDHATHI SARASWATHY, KESAVA NILAYAM, POOZHIKUNNU, KARUMAN DESOM, NEMAM PAKUTHY. 4. ARUNDHATHI LALITHA, KESAVA NILAYAM, POOZHIKUNNU, KARUMAN DESOM, NEMAM PAKUTHY. 5. KESAVAN KARUNAKARAN, KESAVA NILAYAM, POOZHIKUNNU, KARUMAN DESOM, NEMAM PAKUTHY. 6. ARUNDHATHI AMBUJAKSHY, CHERUVALLIKKARA VEEDU, KAZHUVOOR DESOM, KANJIRAMKULAM PAKUTHY. 7. ARUNDHATHI SYAMALA, KESAVA NILAYAM, POOZHIKUNNU, KARUMAN DESOM, NEMAM PAKUTHY. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) WP(C).No. 31441 of 2009(O) RESPONDENT(S): --------------- 1. S.MADHUKUMAR, AMRITHALAYAM, PERUMKULAM PUTHUVAL, PURAYIDAM, KAZHUVOOR DESOM, KANJIRAMKULAM PAKUTHY. 2. REMADEVI, AMRITHALAYAM, PERUMKULAM PUTHUVAL, PURAYIDAM, KAZHUVOOR DESOM, KANJIRAMKULAM PAKUTHY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.31441 OF 2009 -------------------------- Dated this the 5th day of November 2009 ------------------------------------- JUDGMENT Plaintiffs in O.S No.145 of 2008 on the file of Additional Munsiff Court-I, Neyyattinkara have filed this writ petition challenging the order passed by the learned Additional Munsiff to the extent, the amendment application moved by them was declined. The above suit was one for permanent prohibitory injunction. The respondents/defendants resisted the suit claim disputing the title of the plaintiffs over 'D' schedule property in respect of which the decree of injunction was sought for. After the suit came up for trial, petitioners/plaintiffs moved an application for amendment to seek additional relief of declaration of their title over 'D' schedule property and also right of prescriptive easement over a pathway W.P.(C).No.31441 OF 2009 Page numbers running through the property of the defendants seeking inclusion of that pathway as 'C' schedule in the plaint. The application for amendment was opposed to by the respondents/defendants. The learned Additional Munisiff allowed the application in part permitting the plaintiffs to amend the plaint for seeking the additional relief of declaration of their title over 'E' schedule property with consequential amendments to the plaint. The application in respect of the declaration of right of prescriptive easement and the consequential amendment sought thereof in the plaint, was disallowed. Ext.P8 is the order passed by the learned Munsiff. Propriety and correctness of Ext.P8 order to the extent it was disallowed is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioners/plaintiffs. Having regard to the W.P.(C).No.31441 OF 2009 Page numbers submissions made and taking note of the facts and circumstances presented with reference to Ext.P8 order and also other exhibits tendered in the writ petition, I find no notice to the respondents is necessary and hence it is dispensed with. At the time of hearing, the learned counsel for the petitioners submitted that the trial of the suit has not commenced and no prejudice will be caused to the defendants by allowing the proposed amendment sought for by the petitioners and that the proposed amendment is essential to avoid multiplicity of proceedings between the parties. Cause of action for seeking the amendment relating to the declaration of right of prescriptive easement over the pathway running through the property of the defendants arose subsequent to the institution of the present suit and in that contextual background to avoid multiplicity of proceedings the relief thereof was canvassed by way of amendment in the present suit, is the submission of the counsel. Perusing Ext.P8 order passed by the learned Munsiff I find that the learned W.P.(C).No.31441 OF 2009 Page numbers Munsiff was correct in holding that the adjudication of the dispute canvassed relating to the right of prescriptive easement over a pathway allegedly running through the property of defendants in the present suit, by way amending the plaint, cannot be granted. Since the cause of action for canvassing the relief claimed under that amendment can be agitated by the plaintiffs by a separate suit it is open to the plaintiffs to do so. In the pending suit if the proposed amendment is allowed at this stage, naturally it will cause hardship and injury to the defendants. So much so, reserving the right of the petitioners to seek appropriate relief in respect of their claim of right of prescriptive easement over the alleged way running through the property of the defendants the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv