IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WP(C).No. 33973 of 2008(T) -------------------------------------- IA.1116/2008 IN OS.338/2002 of MUNSIFF COURT, THALASSERY .................... PETITIONER(S): ---------------------- 1. P.V. BABU, S/O.KAUSU, M.M.ROAD, THALASSERRY KANNUR DIST. 2. SHOBHA ALIAS MUKTHALATHA D/O.VASUDEVA PAI, 'VASU KRIPA' NEAR TOWN HALL ROAD THALASSERRY, KANNUR DISTRICT. BY ADV. MR.KALEESWARAM RAJ RESPONDENT(S): ------------------------ 1. MANIKKOTH RAGHAVAN,S/O.GOVINDAN MUKUNDA MALLOR ROAD,THALASSERRY. 2. THE THALASSERRY MUNICIPALITY, REPRESENTED BY ITS SECRETARY MUNICIPAL OFFICE, THALASSERRY. R1 BY ADV. MR.K.MOHANAKANNAN, SMT.A.R.PRAVITHA. R2 BY ADV. MR.I.V.PRAMOD . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 33973/2008-T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, THALASSERRY. EXT.P2: COPY OF THE AFFIDAVIT AND PETITION IN O.S.338/2002. EXT.P3: COPY OF THE PARTITION DEED EXECUTED ON 29/11/1958. EXT.P4: COPY OF THE ASSIGNMENT DEED DATED 28/09/1974. EXT.P5: COPY OF THE ASSIGNMENT DEED DATED 19/04/1990. EXT.P6: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN OS.338/2002. EXT.P7: COPY OF THE ORDER DATED 07/10/2008 IN I.A.1116/2008 IN O.S.338/2002. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.33973 of 2008 - T --------------------------------- Dated this the 18th day of August, 2009 JUDGMENT The writ petition is filed seeking the following reliefs: “i) To set aside Ext.P7 passed by the learned Munsiff, Thalassery. ii) To issue a writ of mandamus directing the learned Munsiff, Thalassery to allow I.A.No.1116/2008. iii) To issue a writ of mandamus restraining the learned Munsiff, Thalassery from proceedings with O.S.No.338/2002 before/without allowing I.A.No.1116/2008 as prayed for”. 2. Petitioners are the plaintiffs in O.S.No.338 of 2002 on the file of the Munsiff Court, Thalassery. Suit is one for a decree of mandatory injunction, and, the respondents are the defendants. A commissioner appointed by the court conducted a local inspection and carried out measurement with the assistance of a surveyor. At the time of such inspection it came to the notice of the plaintiffs that there are some discrepancies in the side measurements of the plaint property in the documents under W.P.(C).No.33973 of 2008 - T 2 which they claim title and possession over the property. Whereas, according to the plaintiffs, one document showed the correct measurement the other two documents registered at a later point of time showed discrepancies in the measurement. Petitioners/plaintiffs immediately moved an application before the court for amending the plaint to correct the mistakes noted in the side measurement. Ext.P2 is the copy of the application. That application was objected to by the defendants filing written objections. The learned Munsiff after hearing both sides dismissed that amendment application. Ext.P7 is the copy of that order. Propriety and correctness of P7 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Perusing P7 order, I find that the court below has dismissed the application for the reason that it was filed even before the commission report was presented before the court and as such the application is premature. Another reason which persuaded the court below to dismiss the application was that in W.P.(C).No.33973 of 2008 - T 3 two of the documents produced by the petitioners/plaintiffs side measurements shown in the plaint schedule are recorded. I find the reason set out by the court below to dismiss the application cannot be sustained. Over the adjudication of the disputes relating to immovable properties the measurements shown in the title deed have value, but, it has to be considered with reference to other pieces of evidence and materials tendered in the case. A litigant cannot be denied of an opportunity to show that the side measurements or particulars given in the title deed are incorrect. Immediately on noticing that some mistakes had crept in showing the side measurements, which was detected when an inspection was conducted by the commissioner with the assistance of a surveyor, petitioners/plaintiffs filed an application for amendment. That in fact prima facie show their bona fides. The question whether the side measurements reflect the measurement shown in the title deed and if not how far it will affect the right to sustain the suit claim are all matters which have to be considered during the trial. Parties should be given an opportunity to adduce evidence in respect of their suit claim. W.P.(C).No.33973 of 2008 - T 4 Plaintiffs have a right to plead in the suit that the side measurements shown in some of their documents are wrong, and if that is not allowed, needless to point out it may cause prejudice and irreparable injury to the petitioners/plaintiffs. P7 order cannot be sustained under law, and it is liable to be set aside. I do so. Ext.P2 application filed by the petitioners/plaintiffs in the given facts of the case deserves only to be allowed and it is ordered accordingly. Court below is directed to permit the petitioners to carry out the amendment and once such an amendment is carried out the defendants shall be given an opportunity to file additional written statements, if any. Subject to the above directions, the writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-