IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 OP(C).No. 3314 of 2011(O) ------------------------- OS.26/2007 of MUNSIFF COURT, KARUNAGAPPALLY . ................... (S): PETITIONER ------------------------------ HARIPRAKASH, PANCHAMKULATHU VEEDU, PULIYOOR VANCHI VADAKKU MURI THODIYOOR VILLAGE. BY ADVS. SRI.A.S.P.KURUP SRI.SADCHITH.P.KURUP RESPONDENT(S): --------------- 1. HARIKUMAR, S/O.KRISHNAN NAIR, PANCHUMKULATHU VEEDU, PULIYOOR VANCHI VADAKKU MURI THODIYOOR VILLAGE. PIN-689 510. 2. MADHAVIKUTTY AMMA, PANCHUMKULATHU VEEDU, PULIYOOR VANCHI VADAKKU MURI THODIYOOR VILLAGE. PIN-689 510. 3. KRISHNANKUTTY NAIR, PANCHUMKULATHU VEEDU, PULIYOOR VANCHI VADAKKU MURI THODIYOOR VILLAGE. PIN-689 510. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3314 of 2011(O) APPENDIX PETITIONER(S) EXHIBITS :- EXHIBIT P1- TRUE COPY OF PLAINT NO.26/2007 DATED 7.1.2007 FILED BEFORE HON'BLE MUNSIFF'S COURT, KARUNAGAPPALLY. EXHIBIT P2- TRUE COPY OF WRITTEN STATEMENT IN O.S.NO.26/2007 FILED BY IST RESPONDENT. EXHIBIT P3- TRUE COPY OF PETITION FOR AMENDMENT DATED 2.9.2010 FILED AS IA.1222/2010 BY FIRST RESPONDENT IN O.S.NO.26/2007. EXHIBIT P4- TRUE COPY OF COUNTER AFFIDAVIT DATED 19.1.2011 FILED BY THE PETITIONER IN THE AMENDMENT PETITION. EXHIBIT P5- TRUE COPY OF ORDER DATED 16.7.2011 PASSED BY MUNSIFF'S COURT KARUNAGAPPALLY IN I.A.NO.1222/2010 IN OS.NO.26/2007. EXHIBIT P6- TRUE COPY OF WILL NO.8/1989 DATED 13.6.1989 EXECUTED BY THE PARENTS OF PETITIONER. RESPONDENTS' EXHIBITS : NIL. //TRUE COPY// P.A TO JUDGE amk. THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3314 of 2011 --------------------------------------- Dated this 14th day of October, 2011 JUDGMENT Plaintiff in O.S.No.26 of 2007 of the Court of learned Munsiff, Karunagappally is the petitioner before me challenging Ext.P5, order allowing amendment of counter claim pleaded in the written statement of the first respondent. Petitioner filed the suit for fixation of boundary of plaint C schedule. Petitioner averred that so far as plaint C schedule is concerned, first respondent is claiming some right. First respondent filed written statement and a counter claim seeking fixation of boundary of 19cents (referred to in the plaint C schedule). Later, first respondent filed Ext.P3, application for amendment of written statement to incorporate a claim for partition of plaint C schedule (which was scheduled in the counter claim filed by the first respondent). That application for amendment was allowed by the learned Munsiff by Ext.P5, order. That order is under challenge. 2. Learned counsel submits that the first respondent has no partible right or interest in the plaint C schedule and hence the prayer to incorporate claim for partition ought not have been allowed. O.P(C).No.3314 of 2011 -: 2 :- 3. The question whether first respondent has any partible right in plaint C schedule is not a matter to be taken into account while deciding Ext.P3, application for amendment. The merit of claim sought to be incorporated by amendment is not required to be decided at that stage. The question now to be decided is only whether amendment is required to settle the real controversy between the parties. In the view of rival contention as to the right of first respondent over plaint C schedule, I do not find anything wrong in learned Munsiff permitting the first respondent to amend the counter claim to incorporate relief of partition. 4. Though, learned counsel contended that cause of action for the counter claim has arisen not before filing of the written statement, I am not inclined to accept that contention. If the first respondent has a partible right over the property, the right to claim partition existed even before filing the written statement. It cannot be said to be a new cause of action which has arisen to the first respondent after filing of the written statement. 5. So far as the claim of petitioner that the first respondent has no partible right or interest over plaint C schedule is concerned, it is open to the petitioner to raise all those contentions in the replication in answer to the counter O.P(C).No.3314 of 2011 -: 3 :- claim allowed to be incorporated by amendment. I do not find reason to interfere with the impugned order. This original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-