IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 WP(C).No. 34499 of 2008(F) --------------------------------------- OS.NO.238/2001 OF ADDL.MUNSIFF COURT, ALAPPUZHA. .................... PETITIONERS: --------------------- 1. PADMANABHA KURUP, AGED 62, S/O. NARAYANA KURUP, PADMANABHA SADANAM, P.O., KALAVOOR, KALAVOOR VILLAGE. *ADDL.PETITIONERS 2 TO 4 IMPLEADED: 2. OMANA AMMA, AGED 58, W/O. LATE PADMANABHA KURUP, PADMANABHA SADANAM, KALAVOOR.P.O., KALAVOOR VILLAGE. 3. DHANALAKSHMI ANOOP, AGED 32, D/O. LATE PADMANABHA KURUP, PADMANABHA SADANAM, KALAVOOR.P.O., KALAVOOR VILLAGE. 4. MAKESH P. KURUP, AGED 30, S/O. LATE PADMANABHA KURUP, PADMANABHA SADANAM, KALAVOOR.P.O., KALAVOOR VILLAGE. *ADDL. PETITIONERS 2 TO 4 ARE IMPLEADED AS PER ORDER DATED 23/07/09 IN I.A. NO.662/2009. BY ADVS. MR.P.N.RAMAKRISHNAN NAIR, MR.P.VISWANATHAN. RESPONDENTS: ----------------------- 1. PUTHUVEETTIL DEVASWOM, KATTOOR, KALAVOOR, REPRESENTED BY THE 2ND RESPONDENT, THE PRESIDENT OF THE SAID DEVASWOM. W.P.(C). NO.34499/2008-F: 2. K.N. KRISHNA KURUP, AGED ABOUT 72, KALAKATH HOUSE, KATTOOR, KALAVOOR VILLAGE. 3. SURENDRAN, AGED ABOUT 67, S/O. DAMODARAN, SECRETARY, PUTHUVEETTIL DEVASWOM, KATTOOR, KALAVOOR VILLAGE. R1 TO R3 BY ADVS. SMT.C.G.BINDU, SMT.C.G.AJITHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34499/2008-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 238/2001 ON THE FILE OF THE MUNSIFF'S COURT, ALAPPUZHA. EXT.P.2: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS. EXT.P.3: COPY OF THE WRITTEN STATEMENT FILED BY THE PLAINTIFF. EXT.P.4: COPY OF THE I.A. NO. 2702/2007 IN O.S. NO. 238/2001 ON THE FILE OF THE MUNSIFF'S COURT, ALAPPUZHA. EXT.P.5: COPY OF THE OBJECTION FILED IN I.A. NO. 2702/2007. EXT.P.6: COPY OF THE ORDER PASSED IN I.A. NO. 2702/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.34499 of 2008 - F --------------------------------- Dated this the 23rd day of July, 2009 J U D G M E N T This writ petition is filed seeking the following reliefs: “i) To call for the records in O.S.No.238/2001 on the file of the Additional Munsiff Court, Alappuzha. ii) To issue a writ or direction setting aside the Exhibit P6 order, dated 03.09.2008 and allow Exhibit P4 petition.” 2. Petitioner is the plaintiff in O.S.No.238/2001 on the file of the Additional Munsiff Court, Alappuzha and the respondents are the defendants. Suit is one for declaration of title, recovery of possession and injunction. After the evidence was recorded the petitioner moved an application for amendment of the plaint under Order VI Rule 17 CPC which was objected to by the defendants. In the plaint allegations, the case of the plaintiff was that out of 50 cents obtained by plaintiff 25 cents had been sold to one Vasudevan and in respect of the remaining 25 cents incorporating it as A schedule, item No.1, he claimed reliefs in the suit. There is a second item also in the suit which is W.P.(C).No.34499 of 2008 - F 2 not emerging for consideration in the present petition. The amendment application moved setting forth a case that the averment made in the plaint as to conveying of 25 cents out of the 50 cents to the above said Vasudevan was a mistake and actually the property conveyed to him was different. That mistake crept in the plaint on account of inadvertence on the part of the counsel who drafted the plaint was the case of the plaintiff. The amendment sought for was seriously opposed by the defendant contending that it is devoid of any merit and intended to prolong and protract the litigation. The learned Munsiff, after hearing both sides, disallowed the amendment application. Ext.P6 is the copy of that order. Impeaching the propriety and correctness of Ext.P6 order, petitioner has filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. During the pendency of the petition, the petitioner passed away and his legal heirs have been impleaded as additional petitioners 2 to 4 in the petition. 3. I heard the counsel on both sides. W.P.(C).No.34499 of 2008 - F 3 4. Having regard to the submissions made and the facts and circumstances presented with reference to Ext.P6 order and other materials tendered in the petition, I find the proposed amendment as rightly contended by the defendants if allowed would enable the plaintiff to advance a new case which in all likelihood would cause prejudice to the defendnats and further prolong the litigation. So much so, the disallowing of the amendment by the court below under Ext.P6 order cannot be termed as improper. Learned counsel for the petitioner submitted that since the suit is likely to fail on account of nonallowing of the amendment application especially, when the relief for recovery of possession is sought for, the plaintiff may be permitted to withdraw the suit with liberty to file a fresh suit. The question of granting permission to file a fresh suit has to be considered by the court below, if a proper application thereof is moved by the plaintiff as provided under Order XXIII Rule 1 CPC. I find considerable force in the submission made by the learned counsel for the petitioner that a formal defect which had crept in the plaint would stand in the way of the plaintiff in getting the W.P.(C).No.34499 of 2008 - F 4 relief sought for in the suit. Court below will take note of it while considering the application, if any, moved by the petitioner for seeking withdrawal of the suit with liberty to file fresh suit. Of course, the court can also consider the question of awarding cost to the opposite party, if at all, permission is granted to institute a fresh suit. Subject to the above observations, this writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-