IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 27771 of 2007(F) --------------------------------------- OS.343/1980 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): ---------------------------- MOHAMMED IQBAL, AGED 74 YEARS, S/O. MOHAMMED MAIDEEN, B-10, KAVADIAR GARDENS, KOWDIYAR, TRIVANDRUM. BY ADVS.MR.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS MR.L.RAM MOHAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. LAILAKUMARI, D/O. PRABHAKARAN, TC 12/1509, BARTON HILL, THIRUVANANTHAPURAM. 3. SATHISH KUMAR, RESIDING AT TC 12/1509, BARTON HILL, THIRUVANANTHAPURAM, (REPRESENTED BY HIS LEGAL GUARDIAN LAILAKUMARI, D/O. PRABHAKARAN, TC 12/1509, BARTON HILL, THIRUVANANTHAPURAM. 4. SAJUKUMAR, RESIDING AT TC 12/1509, BARTON HILL, THIRUVANANTHAPURAM, (REPRESENTED BY HIS LEGAL GUARDIAN LAILAKUMARI, D/O. PRABHAKARAN, TC 12/1509, BARTON HILL, THIRUVANANTHAPURAM. W.P.(C) NO.27771/2007 5. RADHIKA, RESIDING AT TC 12/1509, BARTON HILL, THIRUVANANTHAPURAM, (REPRESENTED BY HIS LEGAL GUARDIAN LAILAKUMARI, D/O. PRABHAKARAN, TC 12/1509, BARTON HILL, THIRUVANANTHAPURAM. 6. BAIJU, RESIDING AT TC 12/1509, BARTON HILL, THIRUVANANTHAPURAM, (REPRESENTED BY HIS LEGAL GUARDIAN LAILAKUMARI, D/O. PRABHAKARAN, TC 12/1509, BARTON HILL, THIRUVANANTHAPURAM. R1 BY GOVT. PLEADER MR.REKHA C.NAIR R2 & R5 BY ADVS.MR.M.RAMASWAMY PILLAI MR.P.M.JOSEPH . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.27771/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 343/1980 OF THE SUB COURT, THIRUVANANTHAPURAM. P1(a):- COPY OF THE UNDERTAKING GIVEN THE PROPERTY WILL NOT BE ASSIGNED TO THE SECOND DEFENDANT. P2:- COPY OF THE JUDGMENT IN RP. 316/1996. P3:- COPY OF THE COMMISSION REPROT. P3(a):- COPY OF THE PLAN. P4:- COPY OF THE APPLICATION FOR AMENDMENT. P5:- COPY OF THE ORDER DTD. 16.2.2005 DISMISSING IA. 4026/2000. P6:- COPY OF THE JUDMGNET DTD. 31.1.2007. P7:- COPY OF THE IA,. 2469/2007 (AFFIDAVIT AND PETITION. P8:- COPY OF THE COUNTER FILED BY RESPONDENTS 2 TO 6 IN EX.TP7 IA. P9:- COPY OF THE ORDER DTD. 5.7.07 IN IA. 2469/07 IN OS. 343/1980. P10:- COPY OF THE BASIC TAX REGISTER. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J ------------------------------------- W.P.C No.27771 OF 2007 -------------------------------- Dated this the 22nd day of February 2010 JUDGMENT Petitioner is the plaintiff in O.S No.343/1980 on the file of Sub Court, Thiruvananthapuram. Suit was one for declaration of title, injunction and for recovery. Plaint property originally was described as having 13 ¼ cents as comprised in Survey No.2538 of Vanchiyoor village. Seeking declaration of title over that property, plaintiff sought for a decree of injunction as well against the State from assigning any portion of the land in favour of the 2nd defendant. Subsequently the suit was amended to correct the plaint property, described as 'A' schedule, incorporating a separate schedule as 'B' schedule having an extent of 5 cents seeking its recovery from the 2nd defendant. Such amendment was necessitated, according to the learned counsel for the petitioner/plaintiff, in view of the order of assignment passed by the defendant in favour of the 2nd defendant in respect of 'B' schedule during the pendency of the suit. The 2nd defendant has resisted the suit contending that the property has been enjoyed free from any contractual obligation with the plaintiff or his predecessor in interest. Suit, after trial, was decreed by the trial court. In appeal, the 1st appellate court reversed the decree and dismissed the suit. Second appeal preferred against the W.P.C No.27771 OF 2007 Page numbers judgment of the 1st appellate court was also dismissed. But, later, on a review petition filed by the plaintiff, the judgment rendered in second appeal was reviewed and the case was remitted to the trial court for fresh consideration and disposal. Ext.P2 dated 27/11/1996 is the order rendered in the review petition in second appeal. Pursuant to such remission, an advocate commissioner conducted local inspection over the property and prepared a report and plan. Ext.P3 series are the copies of that report and plan. Ext.P3 report is seen prepared on 15/10/1999. After filing of the commission report, plaintiff moved Ext.P4 application in November 2000 seeking an amendment of the plaint. The amendment canvassed, in the body of the plaint as well as in the description was to the effect that portion of the plaint property described in the suit is comprised by Survey No.2499/2 in Vanchiyoor village as well. That amendment application was resisted to by the 2nd defendant by filing objections. The learned Sub Judge, after hearing both sides, dismissed the amendment application vide Ext.P5 order. Ext.P5 order was challenged by the plaintiff before this court by filing a writ petition. This court vide Ext.P6 judgment while negativing the challenges against Ext.P5 order granted liberty to the plaintiff to move a review petition, in case his title deed contains properties covered by Survey No.2499/2. Pursuant to Ext.P6 judgment, plaintiff preferred W.P.C No.27771 OF 2007 Page numbers Ext.P8 review petition, to which also additional defendants who had been impleaded as legal heirs of the 2nd defendant filed Ext.P7 objection. The learned Sub Judge after considering the merit of Ext.P8 review petition with reference to the objections raised and also the submissions made by the counsel on both sides dismissed that petition vide Ext.P9 order. Propriety and correctness of Ext.P9 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. Inviting my attention to the sale deed of the plaintiff, on the basis of which the suit claim had been canvassed for, it is submitted by the counsel for the plaintiff that the executant of the sale deed had obtained title over the property under patta No.2499 which included survey No.2499/2 as well. Though the title deed does not specifically make mention of that the property conveyed lies in survey No2499/2, it is submitted, since the executant had obtained title under patta No.2499 which included portions of the property covered by Survey No.2499/2, an opportunity should be extended to the plaintiff to lead evidence in the case that the suit property includes the property in Survey No.2499/2 as well by allowing the amendment canvassed for. A number of authorities have been relied by the learned counsel to impress me that the W.P.C No.27771 OF 2007 Page numbers proposed amendment is essential to advance the ends of justice and it is unlikely to cause any prejudice or hardship to the opposite party. The defendant who had earlier contended in his written statement that the property in his possession is comprised in Survey No.2499/2 by way of an amendment, later, had corrected it as comprised in Survey No.2538 is also canvassed by the counsel to contend that the plaintiff should be given an opportunity to amend the plaint as sought for. On the other hand, the learned counsel for the contesting respondents 2 to 6 submitted that review was permitted under Ext.P6 judgment by this court on the basis of the submissions made at the time of hearing of the writ petition that the title deed of the plaintiff contained properties covered by Survey No.2499/2. Though this court found no reason to interfere with the conclusion drawn by the learned Sub Judge disallowing the amendment application under the previous order passed (Ext.P5), by grace, an opportunity was given to the plaintiff to move a review petition on the submission made that the title deed of the plaintiff contained any property in Survey No.2499/2. Permission so granted by this court is now being taken advantage by the plaintiff to develop a case that patta No.2499 under which the executant of the sale deed of the plaintiff had got title over the property contained property comprised in Survey No.2499/2. That according to the W.P.C No.27771 OF 2007 Page numbers counsel cannot be permitted and it was rightly rejected by the learned Sub Judge observing that without rectifying the sale deed, the amendment canvassed for is not entertainable. At any rate, no interference with Ext.P9 order passed by the learned Sub Judge declining the amendment application is called for in exercise of the extra ordinary jurisdiction vested with this court is the submission of the counsel for respondents 2 to 6. 3. I have considered the challenges imputed against Ext.P9 order with reference to the submissions made by the counsel on both sides. Before adverting to the challenges against Ext.P9 order it has to be pointed out that the suit had been instituted in the year 1980 and even after three decades it is pending for disposal before the trial court. Otherwise than by implication with reference to patta No.2499 mentioned in the title deed of the plaintiff he has no case that there is any mention or reference in his title deed that the property conveyed to him contained any portion covered by Survey No.2499/2 in Vanchiyoor village. In Ext.P6 judgment rendered by this court a review against the earlier order passed by the court below was permitted provided his title deed contained property covered by Survey No.2499/2. No doubt that permission was accorded on the submissions made by the counsel for the plaintiff impeaching the correctness of the earlier order of the learned Sub Judge. The title W.P.C No.27771 OF 2007 Page numbers deed of the plaintiff by way of implication with reference to the patta No. stated therein under which the executant of that deed obtained a larger area indicate that the property conveyed to the plaintiff comprisea portion of Survey No.2499/2 as well cannot be accepted by way of an amendment to a suit which had been instituted nearly three decades before the presentation of such an amendment. If the plaintiff, at the belated stage, apprehends that his suit is liable to fail in view of absence of specific particulars and allegations in his plaint as to the nonmentioning of the Survey No.2499/2 in the body and also in the schedule of the property, the only remedy available to him, needless to point out, is to seek permission from the court to withdraw the suit with liberty to file a fresh suit. After going through Ext.P9 order passed by the learned Sub Judge with reference to the circumstances involved in the present case, I find, this is not a fit case where extraordinary jurisdiction of this court is called for. Writ petition is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv