IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 WP(C).NO. 31352 OF 2007(G) -------------------------- AGAINST THE ORDER DATED 17/10/2007 IN IA 1127/07 IN OS.136/2005 OF MUNSIFF COURT,THODUPUZHA .................... PETITIONER: ------------ 1. VARKEY, AGED 74 YEARS, S/O. OUSEPH, KONICKAL HOUSE, KUNNAMKARA, THODUPUZHA VILLAGE. 2. PAUL, S/O. VARKEY, AGED 42 YEARS, KONICKAL HOUSE, KUNNAMKARA, THODUPUZHA VILLAGE. 3. JESSY, S/O. LATE JOSE, AGED 40 YEARS, KONICKAL HOUSE, KUNNAMKARA, THODUPUZHA VILLAGE. BY ADV. SRI.MATHEW JOHN SRI.AJEESH K.SASI RESPONDENTS: ------------- 1. JOHN, S/O. CHACKO, AGED 50 YEARS, KOLAKATTU HOUSE, MUTHALAKODAM KARA, THODUPUZHA VILLAGE. 2. CHACKO, S/O. ULAHANNAN, AGED 83 YEARS, KOLAKATH HOUSE, MUTHALAKODAM KARA, THODUPUZHA VILLAGE. BY ADV. SRI.T.I.ABDUL SALAM ADV.SHRI C.K.VIDYASAGAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)NO.31352/07 PETITIONER'S EXTS: EXT.P1: COPY OF THE PLAINT FILED BY THE RESPONDENT IN O.S.NO. 136/05 BEFORE THE MUNSIFF COURT, THODUPUZHA. EXT.P2: COPY OF THE WRITTEN STATEMENT RAISING THE COUNTER CLAIM FILED BY THE PETITIONERS IN O.S.NO. 136/05. EXT.P3: COPY OF THE COMMISSION REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER BEFORE THE MUNSIFF COURT, THODUPUZHA DATED 7.8.06 ALONG WITH THE SURVEY SKETCH. EXT.P4: COPY OF THE AFFIDAVIT AND APPLICATION IN O.S.NO. 136/05 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, THODUPUZHA. EXT.P5: COPY OF THE ORDER IN I.A.NO.1127/07 IN O.S.NO. 136/05 DATED 17.10.07 OF THE MUNSIFF COURT, THODUPUZHA. RESPONDENTS' EXHIBITS: EXT.R1(a): PHOTOCOPY OF THE SURVEY SKETCH, DATED 8.12.2006. EXT.R1(b): PHOTOCOPY OF THE DEPOSITION OF PW3 IN O.S.NO.136/05 OF THE MUNSIFF COURT, THODUPUZHA. TRUE COPY M.N.KRISHNAN, J. ---------------------- W.P.(C)No.31352 OF 2007 ----------------------------- DATED THIS THE 4TH DAY OF MARCH, 2008 J U D G M E N T This writ petition is preferred against the order of the Munsiff, Thodupuzha in I.A.No.1127/07 in O.S.No.136/05 whereby the learned Munsiff refused to allow the amendment of the counter claim. The brief facts necessary are that the suit is instituted by the plaintiff for an injunction with respect to A schedule property as well as B schedule pathway and in reply the defendant has filed a counter claim regarding the entitlement of his property with respect to the counter claim schedule. It is the case of the defendant that he was the owner in possession of 1 acre 28 cents of property, out of which 1 acre was acquired for the purpose of MVIP canal and in the written statement, it is submitted that 26 cents of land is situated on the southern side of the canal and 2 cents of land is situated on the northern side of the canal. Now, an application for amendment is filed that it was under the bona fide impression that what the revenue W.P.(C)No.31352/07 2 authorities have stated is correct, such an averment is made in the written statement. But in fact, two cents also is on the southern side of the canal and therefore he has sought for an amendment in that fashion. On the other hand, the learned counsel for the respondent in the writ petition would contend that the amendment shall not be allowed and the party cannot be permitted to totally deviate from his pleaded case and therefore the application has been rightly rejected by the court below. So far as the question to be decided is firstly whether an amendment is to be allowed, time and again this matter has been the subject matter for consideration by the Apex Court and various High Courts and courts have held that amendment, especially amendment of the written statement, has to be allowed more liberally. The law also permits the party to make inconsistent plea in the written statement, but not in the plaint. It is also settled principle that the courts need not go into the merits or demerits of the case as such for the purpose of consideration of an amendment application. Therefore, I find circumstances in this case to allow the amendment. But, I make it very clear that in order to have a proper determination of the case, W.P.(C)No.31352/07 3 there will be basic documents, especially acquisition records which will show what is the property acquired out of the 1 acre and 28 cents and where exactly the remaining property is there. If the commissioner with the help of the surveyor visits the property, he will be able to point out it to the Court. Then, it is for the Court to consider where exactly this property was and also can take into consideration, the rival contentions and decide the matter in accordance with law. Therefore the order under challenge is set aside and amendment is allowed. I permit the plaintiff also to file replication, since I am allowing the amendment, so that he can make the things clear which are to be looked into at the time of visit by the commissioner and the surveyor. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE. dsn