IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 OP(C).No. 3391 of 2011(O) ------------------------------------- IA.943/2011 IN OS.26/2009 OF ADDITIONAL SUB COURT, IRINJALAKUDA .................... PETITIONER/PLAINTIFF: ------------------------------------ ASHOKAN, AGED 62 YEARS S/O.VELAYUDHAN, CHARUVIL HOUSE THAINAGAR DESOM, KAIPAMANGALAM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.P.K.SAJEEV, SRI.CIBI K.CHERIAN. RESPONDENT/DEFENDANT: ----------------------------------------- SUDHAKARAN S/O.VELAYI, THARAYIL HOUSE NEAR KALIPARAMBU COLONY, THAINAGAR DESOM KAIPAMANGALAM VILLAGE, KODUNGALLUR TALUK KAIPAMANGALAM P.O., PIN- 680 681. BY ADV. SRI.V.M.KRISHNAKUMAR. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 3391 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S. NO.26/2009. EXT.P2: COPY OF THE APPLICATION IN I.A. NO.96/2009 IN O.S. NO.26/2009. EXT.P3: COPY OF THE ORDER DATED 06/01/2009 IN I.A. NO.96/2009 IN O.S. NO.26/2009. EXT.P4: COPY OF THE WRITTEN STATEMENT IN O.S. NO.26/2009. EXT.P5: COPY OF THE COMMISSION REPORT DATED 07/01/2011. EXT.P6: COPY OF THE AMENDMENT APPLICATION IN I.A. NO.943/2011. EXT.P7: COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.943/2011. EXT.P8: COPY OF THE ORDER DATED 08/03/2011 IN I.A. NO.943/2011 IN O.S. NO.26/2009. EXT.P9: COPY OF THE JUDGMENT DATED 10/03/2011 IN OPC NO.1005/2011. EXT.P10: COPY OF THE ORDER DATED 23/08/2011 IN I.A. NO.1125/2011 IN O.S. NO.26/2009. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3391 of 2011 -------------------------------------- Dated this the 16th day of November, 2011. JUDGMENT Respondent is served, but there is no response. 2. This Original Petition is filed by the plaintiff in O.S.No.26 of 2009 of the court of learned Additional Sub Judge, Irinjalakuda. That is a suit filed by petitioner for a decree for prohibitory injunction to restrain the respondent from trespassing into the suit property and committing waste. Respondent filed written statement denying various allegations in the plaint and contending that the extent of plaint A schedule described in the plaint is not correct and disputing the existence of a boundary between plaint A and B schedules. Respondent also contended that without a prayer for fixation of boundary, reliefs prayed for by the petitioner could not be granted. Learned Sub Judge appointed a survey commission to identify the suit property. Accordingly the Commissioner has submitted Ext.P5, report and plan. Case was posted for trial in the list on 10.03.2011. In the meantime, on 05.03.2011 petitioner filed Ext.P6, application for amendment of plaint to incorporate a prayer for fixation of boundary and to make necessary amendment to the plaint to make it in tune with Ext.P5, report and plan. That application was dismissed. Following that, the suit was dismissed for default. In the meantime, petitioner had challenged Ext.P8, order dismissing the application for amendment in this Court in O.P.(C) OP(C) No.3391/2011 2 No.1005 of 2011. That Original Petition was disposed of by judgment dated 10.03.2011 observing that since the suit is dismissed for default, Original Petition is closed as it became infructuous, with liberty to the petitioner to approach this Court as and when the suit is restored to file. Later the suit was restored to file on 23.08.2011. Thereafter petitioner has filed this Original Petition challenging Ext.P8, order. 3. It is contended by the learned counsel that Ext.P8, order is not sustainable. It is submitted that Ext.P6, application was dismissed for the reason that it is belated and that the amendment would change the nature of suit. 4. It is true that the suit as originally filed is one for prohibitory injunction, petitioner claiming that he is in possession of plaint A schedule and that respondent is attempting to trespass into plaint A schedule. Respondent disputed identity of plaint A schedule including existence of boundary between plaint A and B schedules and contended that in the absence of a prayer for fixation of boundary reliefs prayed by petitioner cannot be allowed. After Ext.P5, report and plan were submitted by the Advocate Commissioner, petitioner attempted to amend the plaint to incorporate a prayer for fixation of boundary. Under Order VI, Rule 17 of the Code of Civil Procedure (for short, “the Code”) the court is empowered to allow amendment of pleadings as is necessary for determining the real questions in controversy between the parties. Even as per the contentions raised by the respondent, there is dispute regarding boundary OP(C) No.3391/2011 3 between plaint A and B schedules and in the light of Ext.P5, report and plan submitted by the Advocate Commissioner it is all the more necessary that the dispute regarding boundary has to be settled in the present suit itself rather than driving the parties to a separate suit. The provision for amendment is intended to prevent multiplicity of suits as well. I am not inclined to think that because a prayer for fixation of boundary is also made in the suit that, that would altogether change the nature and character of the suit. The mere fact that the application is belated by itself is not sufficient to dismiss Ext.P6, application since the application was presented before recording evidence in the case. Having regard to the various aspects I am inclined to think that Ext.P6, application is to be allowed. Resultantly this Original Petition is allowed. Ext.P8, order is set aside and Ext.P6, application is allowed. Petitioner shall carry out the amendment within two weeks from the date of receipt of a copy of this judgment in the trial court. On the amendment being carried out, respondent shall be given opportunity to file additional written statement in answer to the amendment. THOMAS P.JOSEPH, Judge. cks