IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 WP(C).No. 36216 of 2008(J) --------------------------------- IA 4214/2008 IN OS.241/2006 of ADL.SUB COURT, THALASSERY .................... PETITIONER(S): ------------------- MAVILA GOVINDAN,S/O.KUMARAN NAMBIAR 'SHILPALAYAM' KOLARI AMSOM, ELANUR DESOM, THALASSERY TALUK,KANNUR DISTRICT. BY ADVS. SRI.K.V.SOHAN SMT.K.SREEJA SOHAN RESPONDENT(S): -------------------- 1. THEKKAN LAKSHMI AMMA D/O.APPA NAMBIAR, KOLARI AMSOM ELANUR DESOM THALASSERY TALUK, KANNUR DISTRICT. 2. THEKKAN RAJAN, S/O.APPA NAMBIAR, KOLARI AMSOM ELANUR DESOM THALASSERY TALUK, KANNUR DISTRICT. 3. THEKKAN BALAKRISHNAN KOLARI AMSOM ELANUR DESOM THALASSERY TALUK, KANNUR DISTRICT. 4. THEKKAN GOVINDA KOLARI AMSOM ELANUR DESOM THALASSERY TALUK, KANNUR DISTRICT. 5. THEKKAN JANAKI AMMA, W/O.KOMAN NAMBIAR RESIDING AT CHEPINOOL, P.O.MUYYAM VIA, TALIPARAMBA, KANNUR DISTRICT. 6. THEKKAN NARAYANAN NAMBIAR KADAMUNDA, PAYAM EAST, IRITTY THALASSERY TALUK, KANNUR DISTRICT. 7. THEKKAN SREEDEVI AMMA CHEDIKULAM, ARALAM P.O. THALASSERY TALUK, KANNUR DISTRICT. 8. THEKKAN JANARDHANAN PADIYOOR AMSOM, PERUNANNA DESOM, IRIKKUR THALASSERY TALUK, KANNUR DISTRICT. 9. THEKKAN DAMODARAN PADIYOOR AMSOM, PERUNANNA DESOM, IRIKKUR THALASSERY TALUK, KANNUR DISTRICT. svs .........2/-... ...2... WP(C).No. 36216 of 2008(J) 10. THEKKAN NARAYANI AMMA, W/O.KUNHIRAMAN NAMBIAR, KALLYAD AMSOM DESOM TALIPARAMBA, KANNUR DISTRICT. 11. THEKKAN RAMAKRISHNAN KALLYAD AMSOM DESOM TALIPARAMBA, KANNUR DISTRICT. 12. THEKKAN GEETHA PADIYOOR AMSOM, PERUNANNA DESOM, IRIKKUR KANNUR DISTRICT. 13. THEKKAN ANITHA KARAKUNNUMMAL, THILLANKERI P.O.,ULIYIL, TELLICHERRY TALUK, KANNUR DISTRICT. 14. THEKKAN VIMAL, KALLIYAD, P.O.IRIKKUR TALIPARAMBA TALUK, KANNUR DISTRICT. 15. THEKKAN NARAYANAN NAMBIAR NIDIYODI, PADIYOOR, TALIPARAMBA TALUK, KANNUR DISTRICT. 16. THEKKAN MADHAVI AMMA,DO...DO... 17. THEKKAN CHIRUTHA AMMA, DO...DO... 18. THEKKAN SANTHA, DO...DO... 19. THEKKAN REMA,DO...DO... 20. THEKKAN RADHAMANI,DO...DO.. 21. THEKKAN RAVINDRANATHAN, DO...DO.. 22. THEKKAN HARINDRANATHAN, DO..DO... 23. THEKKAN SREEJA NIDIYODI, PADIYOOR, TALIPARAMBA TALUK,KANNUR DISTRICT. 24. KOLIYADAN KALLYANI AMMA W/O GOPI & GOVINDAN NAMBIAR KOTTOOR AMSOM, DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 25. KOLLIYADAN PREMAVALLI,KOTTOOR AMSOM, DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 26. KOLIYADAN VIJAYAKUMAR, DO...DO.... 27. MALIVA DAMODARAN NAMBIAR,S/O.KAMMARAN NAMBIAR, KOLARI AMSOM,ELANUR DESOM TELLICHERRY TALUK, KANNUR DISTRICT. 28. MAVILA MADHAVI AMMA, W/O.KAMMARAN NAMBIAR, DO..DO... svs .........3/-... ...3... WP(C).No. 36216 of 2008(J) 29. MAVILA NARAYANAN NAMBIAR S/O.KAMMARAN NAMBIAR,DO..DO... 30. MAVILA GOPALAN, S/O.KAMMARAN NAMBIAR,DO..DO... 31. MAVILA DEVAKI, W/O.KRISHNAN NAMBIAR,KOLARI AMSOM, PARORA DESOM, TELLICHERRY TALUK, KANNUR DISTRICT. 32. KOZHUKUNNUMMAL THAMBAI W/O.THEKKAN NARAYANAN NAMBIAR PADIYOOR AMSOM, MIDIYODI DESOM TALIPARAMBA TALUK, KANNUR DISTRICT. 33. THEKKAN RAJAN,PADIYOOR AMSOM, MIDIYODI DESOM TALIPARAMBA TALUK, KANNUR DISTRICT. 34. SUDHA, DO..DO.. 35. SARASWATHIDO..DO.. 36. DEVI, W/O.MAVILA GOPALAN,KOLARI AMSOM, ELANUR DESOM TELLICHERRY TALUK, KANNUR DISTRICT. 37. NALINI, W/O.KUNHAPPA,KOLARI AMSOM, ELANUR DESOM TELLICHERRY TALUK, KANNUR DISTRICT. 38. THANKAM,.W/O. PADMANABHAN, DO..DO.. 39. LEELA, W/O.PADMANABHAN, DO...DO... 40. OMANA, W/O.PRAKASHAN KOLARI AMSOM, ELANUR DESOM TELLICHERRY TALUK, KANNUR DISTRICT. 41. NANI, DO..DO.. 42. MANOJ, DO...DO.. R2-4 BY ADVS. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID SMT.NAMITHA JYOTHISH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs WP(C).No. 36216/2008(J) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPLICATION FOR AMENDMENT OF THE PLAINT AS I.A. 4214/2008 BY THE PETITIONER, DATED 20/11/2008. P2: COPY OF THE COUNTER FILED BY RESPONDENT NO.3 TO I.A.4214/08 IN O.S.241/2006 DATED 24/11/2008. P3: COPY OF THE APPLICATION FILED BY THE PETITIONER FOR ISSUE OF A COMMISSION AS I.A.4216/2008, DATED 20/11/2008. P4: COPY OF THE COUNTER FILED BY THE 3RD RESPONDENT TO I.A.4216/2008, DATED 24/11/2008. P5: COPY OF THE COMMON ORDER IN I.A.4214/2008 AND I.A.4216/2008 IN O.S.241/2008, DATED 27/11/2008. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 36216 OF 2008 ------------------------------- DATED THIS THE 27TH DAY OF JANUARY, 2011 JUDGMENT Ext.P5 common order passed in I.A.Nos.4214/2008 and 4216/2008 in O.S.No.241/06 is under challenge. The plaintiff in the suit is the petitioner in the said I.As. I.A.No.4214/08 was filed for amendment of the plaint. The suit was filed for cancellation of a part of the decree passed in O.S.No.53/1989 on the file of the Munsiff's Court, Kuthuparamba. It is averred in the affidavit filed in support of the application for amendment that in the Will executed in favour of the petitioner a mistake is crept in with respect to the survey number of the property, that actully, item No.1 of the plaint schedule property situated in R.S.No.15/4 of Kolari amsom and Ellannur desom and its old survey number was 27 and that item No.2 of the plaint schedule property situated in R.S.No.15/3 with old survey number 27. According to the petitioner, due to a mistake in the Will executed by the father of the -2- WP(C).No.36216/08 petitioner, the resurvey number is shown as 16/6 and that the old survey number is shown as 15/4 and 27. It is also averred that the very same mistake has been repeated in the body of the plaint and schedule and that the mistake is noticed by the plaintiff only on getting the Adangal extract a week before the filing the petition. According to the petitioner, the quoting of the survey number is a mistake and in order to rectify the mistake the present application for amendment is filed. 2. The learned counsel appearing for the respondents seriously opposed the prayer of the petitioner. According to him, the proposed amendment will change the nature and character of the suit and was filed without any bona fides to drag the mater and cause harassment to the defendants in the suit. 3. The connected I.A.No.4216/08 was filed for appointment of a Commissioner to prepare report and plan. It is stated that for amendment of the plaint, a fresh plan and report showing the details of the properties are required. The court below -3- WP(C).No.36216/08 dismissed the application for amendment mainly for the reason that it is highly belated. It is true that the petitioner filed the application after the case was listed for trial. The averments in the affidavit filed in support of the applications are taken as true. The amendment was necessary due to the belated notice of the mistake in quoting the plaint schedule survey number. Whether the correct survey number of the suit property is the old survey number shown in the plaint or the new survey number now shown to be introduced are all matters touching the merits of the case. The petitioner did not seek any change in the description of the property or the boundaries of the property. What is the correct survey number of the plaint schedule properties and whether the plaint schedule properties are included as item No.3 in the earlier suit are all questions touching the merits of the case, which has to be adjudicated on the basis of the contentions of the respective parties. It is a fact that the belated filing of the application lead to the delay in disposing of the suit and also caused hardships to the defendants -4- WP(C).No.36216/08 in the suit. Since the applications were filed belatedly, I think that the applications can be allowed only on terms. Accordingly, Ext.P5 order is set aside. I.A.Nos.4214/08 and 4216/08 are allowed on condition that the petitioner in the said IAs. shall pay an amount of Rs.5,000/- (Rupees five thousand) as costs to the counsel for respondents 2, 3 and 4 within a period of fifteen days from today. In case the cost is paid as directed above, the court below shall dispose of the suit in accordance with law, within a period of six months from the date of appearance of the parties. The parties shall appear before the court below on 24th February, 2011. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.