IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 OP(C).NO. 253 OF 2010(O) -------------------------------------- OS.1884/2007 OF ADDITIONAL MUNSIFF COURT, IRINJALAKUDA .................... PETITIONERS: --------------------- 1. ASOKAN, S/O.CHELIPARAMBIL AYYAPPAN, KARALAM PO, THRISSUR DT. 2. SIVANANDAN, S/O.CHELIPARAMBIL AYYAPPAN, KARALAM, THRISSUR DT. REPRESENTED BY POA ASOKAN, S/O.CHELIPARAMBIL AYYAPPAN, KARALAM PO, THRISSUR DT. 3. DAYAVATHY, W/O.VAYKATTIL RADHAKRISHNAN, KATTUR PO, THRISSUR DT. 4. RENUKA, W/O.CHELIPARAMBIL JAYAN, KARALAM PO, THRISSUR DT. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S): ------------------------ 1. JAYARAJAN, S/O.PATTATH SREEDHARAN, KARALAM PO, THRISSUR DT. 2. SREEDHARAN, S/O.PATTATH SANKUNNY, DO. DO. 3. VENUGOPAL, KAKKERY HOUSE, DO. DO. 4. BABURAJ, S/O.PATTATH SREEDHARAN, DO. DO. 5. DASAN, S/O.PATTATH SREEDHARAN, DO. DO. 6. CHANDRAN, S/O.PATTATH GOVINDAN, DO. DO. 7. NARAYANAN, S/O.PATTATH GOVINDAN, DO. DO. 8. THANKA, W/O.PATTATH KRISHNAN, DO. DO. 9. BALAKRISHNAN, S/O.PATTATH VASU, DO. DO. 10. AYYAPPAN, S/O.PUTHIYAMADATHIL HOUSE, DO. DO. ADV. SRI.V.M.KRISHNAKUMAR FOR R1-R10 SMT.P.A.ANITHA FOR R1-R10 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.253 OF 2010 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF PLAINT IN O.S. NO.1884 OF 2007 OF THE COURT BELOW. EXHIBIT P2 TRUE COPY OF I.A. NO.161 OF 2009 IN EXHIBIT P1. EXHIBIT P3 TRUE COPY OF COUNTER TO EXHIBIT P2. EXHIBIT P4 TRUE COPY OF ORDER ON EXHIBIT P2. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.253 of 2010 ==================================== Dated this the 19th day of July, 2011 J U D G M E N T Plaintiffs in O.S. No.1884 of 2007 of the court of learned Additional Munsiff, Irinjalakuda are the petitioners before me challenging correctness of the order dated May 18, 2010 on I.A. No.161 of 2009, for amendment of the plaint. 2. Petitioners-plaintiffs instituted the suit, originally for a declaration of right of way through plaint B schedule stating that plaint B schedule is included in the property belonging to the petitioners, their brothers and sisters and that they have a right to use the said B schedule for access to the plaint A schedule property belonging to them. There was also a prayer for prohibitory injunction to restrain respondents from trespassing into any portion of plaint A schedule property. 3. During pendency of the suit the Advocate Commissioner inspected property and submitted a report. Taking a clue from that report petitioners filed I.A. No.161 of 2009 for amendment of plaint. In the affidavit in support of that application petitioners alleged that respondents trespassed into a portion of plaint A schedule and in the circumstances they O.P(C) No.253 of 2010 -: 2 :- wanted reliefs A and B in the plaint to be deleted and seek recovery of possession of plaint C schedule described as the trespassed portion of the property on the strength of title and other reliefs. That application was opposed by the respondents on various grounds including that if amendment is allowed that will alter the character and nature of the suit. Leaned Munsiff dismissed the application. Hence this Original Petition. Learned counsel submitted that dismissal of the application is not correct and at any rate the observations made by the learned Munsiff in the impugned order even affected right of petitioners to file a fresh suit for recovery of possession of the trespassed area. I have heard learned counsel for respondents also. 4. It is trite law that when an application for amendment is being considered it is not necessary for the court to go into the merits of the claim. What is required is whether amendment should be allowed or not. If the nature and character of the suit is altered substantially by the amendment, then the court shall not allow amendment. 5. Here, originally, petitioners pleaded that they have a right of access through plaint B schedule and that the said right shall not be obstructed by the respondents. Now the said reliefs O.P(C) No.253 of 2010 -: 3 :- are sought to be deleted by amendment and an entirely different relief of recovery of possession of the alleged trespassed area on the strength of title is sought to be incorporated. If amendment is allowed the suit will cease to be one for a declaration of right of way through plaint B schedule property. Instead, it will stand converted into a suit for recovery of possession of the alleged trespassed area on title. In that view of the matter, I do not find reason to interfere with the dismissal of the application. 6. Other observations made by the learned Munsiff in the impugned order as if whether there was a trespass or not and whether petitioners are entitled to recovery of possession of the trespassed area being unnecessary for disposal of I.A. No.161 of 2009 will stand confined to the disposal of I.A. No.161 of 2009 and shall not in any way affect the right if any of petitioners to institute fresh suit for recovery of possession of the allegedly trespassed area on the strength of the title they claim. Resultantly, Original Petition is disposed of with the observation that all observations made by the learned Munsiff in the impugned order except that the amendment if allowed would change the nature and character of the suit will stand confined only to the disposal of I.A. No.161 of 2009 and it is made clear O.P(C) No.253 of 2010 -: 4 :- that those observations will not in any way affect the right of petitioners to prove the alleged trespass and seek recovery of possession of the trespassed area on the strength of the title they have claimed. THOMAS P. JOSEPH, JUDGE. vsv