IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 29695 of 2009(O) --------------------------------------- AGAINST THE ORDER DATED 03/10/2009 IN IA/2363/2009 IN OS.80/2008 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): ------------------------ MARY JAMES, AGED 54, W/O.JAMES, THOOMULLIL HOUSE, VARAPPETTY, KOTHAMANGALAM. BY ADVS.MR.P.N.RAMAKRISHNAN NAIR MR.P.VISWANATHAN RESPONDENT(S): ------------------------- 1. SARASWATHY AMMA, AGED 61, W/O.SHIVASANKARAN NAIR, KOCHERYKKUDY HOUSE, VARAPPETTY, KOTHAMANGALAM. 2. K.S.BABU, AGED 46, S/O.SHIVASANKARAN NAIR, KOCHERYKKUDY HOUSE, VARAPPETTY, KOTHAMANGALAM. 3. K.S.MANOJ, AGED 31, S/O.SHIVASANKARAN NAIR, KOCHERYKKUDY HOUSE, VARAPPETTY, KOTHAMANGALAM. 4. SHIJO T.JAMES, AGED 29, S/O.JAMES, THOOMUTTEL HOUSE, VARAPPETTY, KOTHAMANGALAM. R1 TO R3 BY ADV. MR.ALEXANDER JOSEPH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/03/2010, THE COURT ON 06/04/2010 DELIVERED THE FOLLOWING: W.P.(C) NO.29695/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 80/2008 ON THE FILE OF MUNSIFF'S COURT, MUVATTUPUZHA. P2&P2(a):- COPY OF THE COMMISSION REPORT AND ROUGH SKETCH DTD. 25.2.08 IN OS. 80/08. P3:- COPY OF THE WRITTEN STATEMENT IN OS. 80/2008. P4:- COPY OF THE IA. 2125/2009 IN OS. 80/08. P5:- COPY OF THE ORDER DTD. 10..09 PASSED IN IA. 2125/2009 IN OS. 80/2008. P6(a):- COPY OF THE COMMISSION REPORT AND ROUGH SKETCH DTD. 19.8.2009 IN OS. 80/08. P7:- COPY OF THE IA. 2363/09 IN OS. 80/2008. P8:- COPY OF THE ORDER DTD. 3.10.2009 PASSED IN IA. 2363/2009 IN OS. 80/08. TRUE COPY P.S. TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 29695 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2010. JUDGMENT Petitioner instituted O.S. 80 of 2008 before the Munsiff's Court, Muvattupuzha, which was a suit for injunction against the defendants from filling up a thodu, which is running through the property owned by the defendants, from obstructing the flow of water through it or diverting its direction or from doing any act detrimental to the cultivation and enjoyment of plaint A schedule property. 2. First plaintiff is the absolute owner of plaint A schedule property and the defendants owns plaint B schedule lying on the south of plaint A schedule property. A thodu starts from the properties lying on the south eastern side of the plaint A and B schedule properties and flows towards north west and then towards north through the culvert of the river road and reaches plaint B schedule property. It then goes towards WPC. 29695/2009. 2 north through plaint A and B schedule properties through the western side and reaches Kothamangalam river. According to the plaintiffs, the thodu has a depth of 4 feet and width of 3 feet. That thodu was in existence for a considerably long period and water collected in the plaint schedule properties and the properties on the south eastern side of the plaint A and B schedule properties and the properties during rainy season are drained out from the said thodu and thus prevented the flooding in the fields and agricultural lands. It is contended that the plaintiffs acquired prescriptive right of easement over C schedule thodu. The suit was laid when the defendants tried to reclaim plaint B schedule property. The defendants filled up a portion of plaint C schedule thodu and attempted to divert the flow of water from the culvert towards north. 3. The defendants resisted the suit and contended that there is no thodu described as plaint C schedule and the plaintiffs had no right to use any portion of plaint B schedule for any purpose. WPC. 29695/2009. 3 4. The suit was posted for trial on 6.8.2009. According to the plaintiffs, while preparations were being done to face trial, it was found that some mistakes had crept in the boundary descriptions of the plaint C schedule property. In the plaint, the southern boundary was mistakenly shown as Panchayat road and the western boundary was shown as Kocherikudy Babu's property. The commission report revealed that a narrow strip of land was left on the southern side of the thodu and the northern side of the southern boundary of plaint B schedule property and also a narrow strip was left on the western side of the thodu slightly away from the eastern boundary of plaint B schedule property. In order to bring the boundary description of the plaint schedule property in tune with the commissioner's plan, I.A. 2125 of 2009 was filed by the plaintiffs seeking amendment of the plaint incorporating the above aspects. Ext.P4 is the copy of the said application. The court below dismissed the petition by Ext.P5 order. WPC. 29695/2009. 4 5. According to the petitioner, there was an interim injunction in his favour. On 11.7.2009 the defendants in violation of the order of injunction put up a new thodu through the eastern side of the plaint B schedule property and diverted the flow of water to plaint A schedule property so as to destroy the cultivation therein. Hence the plaintiff filed I.A. 2230 of 2009 and I.A. 2229 of 2009 for appointment of Advocate Commissioner to report about the violation. The report and sketch of the Commissioner is produced as Exts.P6 and P6(a). It became necessary for the plaintiff to incorporate new relief by way of amendment of the plaint as a result of the action of the defendants in violation of the order of injunction. Incorporating the necessary amendments, they filed I.A. 2263 of 2009 seeking amendment of the plaint. That was also dismissed by Ext.P8 order. Exts.P5 and P8 are under challenge. 6. Learned counsel appearing for the petitioner pointed out that the grounds relied on by the petitioner to dismiss the amendment applications are not justifiable. As WPC. 29695/2009. 5 regards Ext.P5, it is pointed out that one fails to understand how the character of the suit is changed. It may be true that there is a change in the description of the boundary of C schedule property. But that will not change the character and nature of the suit and that remains the same. At the time of filing the suit, the plaintiffs were not aware of the narrow strip of land was left on the south and west of plaint C schedule thodu. The thodu was running along the southern and western sides of plaint B schedule properties. When they realised the mistake they sought amendment pointing out the proper boundaries. 7. Learned counsel appearing for the respondents pointed out that the petitioner, who sought amendment regarding the boundaries of C schedule is not so innocent as he tries to be. If the amendment is allowed, that would mean that the plaintiff could locate the thodu said to be running through the property anywhere in the western side of plaint B schedule property. That cannot be permitted. WPC. 29695/2009. 6 8. It was also pointed out that Ext.P5 order was passed on 10.8.2009 and it is only now that the petitioner has sought to challenge the same. The belated attempt of challenging Ext.P5 shows that the petitioner had accepted the order initially and it is as a result of an after thought the present challenge has been made. 9. Though the argument of the learned counsel for the respondents look very attractive, on a closer scrutiny it can be found to be without any basis. One fails to understand how the character of the suit is changed as found by the court below. All that is sought to be amended is the boundary of plaint C schedule property in the light of the Commission report. The position of the thodu as alleged in the plaint remains the same except that it is not on the southern and western boundary, but little inside the property leaving a narrow strip of land on the west and south. 10. Learned counsel appearing for the respondents pointed out that the commission report was filed on 22.5.2008 and Ext.P4 application for amendment WPC. 29695/2009. 7 was filed only on 4.8.2009. There is no justification for the belated prayer for amendment. Learned counsel for the petitioner pointed out that the reason has been mentioned in the petitioner and there is no reason to disbelieve the said facts. 11. May be that there is some delay in filing the amendment application, namely, Ext.P4, But one must notice that the Commission sketch was there and if in fact the decree was to be passed in favour of the plaintiff, the sketch would be made a part of the decree. It is not as if the parties were in dark regarding the location of C schedule thodu,even initially, the commission report only showed that a narrow strip of land is left on the southern and western side of the thodu and in order to avoid a future controversy, the plaintiff sought amendment of the plaint, though it could have been done earlier. But they have also given reasons as to why delay occurred. One fails to understand what prejudice could be caused to the respondent by allowing the WPC. 29695/2009. 8 amendment. At any rate, the reason given by the court below to decline the amendment cannot be sustained in law. 12. It is true that the amendment application was filed on the date of trial. But it could not be said that the defendants were taken by surprise that they were aware of the true state of affairs as the Commission report had already been filed. It is also pointed out that the amendment sought for by Ext.P4 application was in terms of the Commission report. Therefore it could not also be said that the amendment would take them by surprise. 13. As regards the second amendment application, Ext.P7, that was based on subsequent events. it is pointed out by the learned counsel for the petitioner that there was an injunction against the respondents. It was violating the order of injunction that they had tried to construct a new thodu on the eastern side of plaint B schedule property. It was to avoid a contention ultimately if the plaintiff succeeds that there was no relief as regards the new thodu that the amendment was sought for to WPC. 29695/2009. 9 incorporate necessary reliefs in that regard also. There was no justification on the part of the lower court in not allowing the amendment applications. Learned counsel for the petitioner pointed out that the reason is not acceptable at all. 14. Learned counsel appearing for the respondents on the other hand pointed out that even assuming the allegations to be true, that creates a new cause of action and therefore the plaintiff will have to resort to another suit. It is not in respect of C schedule thodu that anything had been done by the defendants and the allegation is that he had cut open a new thodu in his own property through the eastern side. That has nothing to do with the subject matter of the present suit. So accordingly, it is contended that it is as separate cause of auction and a separate will have to be filed. 15. Though the argument may look attractive, on a close scrutiny it can be found to be without basis. One may have to look at the plaint, and the relief B sought for in WPC. 29695/2009. 10 the plaint. The injunction sought for is that the defendants shall not commit any act which would adversely affect the agricultural operation in plaint A schedule property. The allegation made now in the amendment application by the plaintiff is that by cutting open a new thodu on the eastern side, water will flow into plaint A schedule property and destroy their crops. As to the exact effect, one has to note the relief in that respect in the plaint. In the plaint, there is a prayer to injunct the defendants from doing any acts detrimental to the cultivation and enjoyment of the plaint A schedule property. Therefore the contention that a separate suit will have to be filed cannot be accepted. Even otherwise, it is an act done during the pendency of the suit and, if it adversely affect the parties and they can seek appropriate reliefs in the same suit itself. 16. The reasons given by the court below to dismiss the applications are unsustainable in law. According to the lower court they ought to have been more diligent, and their filing of the application on the date of trial cannot WPC. 29695/2009. 11 be countenanced. It is pointed out that the incident is alleged to have taken place on 11.7.2009 and therefore if the plaintiffs were diligent, they would have filed it earlier. 17. The commission report is dated 19.8.2009. The amendment application was moved on 26.8.2009. That means soon after the commission report was filed, the application for amendment was also filed. It could not therefore be said that the plaintiff was not diligent in this regard. 18. None of the grounds relied on by the court below to decline the amendment as per Exts.P4 and P7 petitions are legally acceptable. 19. For the proper adjudication of the issues involved in the suit, these amendments are necessary. Of course, proviso to Order VI Rule 17 of CPC provides that once the trial commenced, unless there are compelling reasons, amendment shall not be allowed. Viewed from that angle, Ext.P4 is highly belated. But one has to notice that the amendments are required for a proper adjudication of WPC. 29695/2009. 12 the issues involved in the suit. Even assuming that the amendment sought for is belated, it ought to be allowed so as to avoid multiplicity of suits. Viewed from this angle, it has to be said that both the amendment applications ought to have been allowed and at any rate any delay caused to the respondents can be compensated by awarding costs. 20. Going by the reliefs sought for in the plaint also the amendment sought for are quite appropriate. In the result, this writ petition is allowed, Exts. P5 and P8 are set aside and the amendment applications are allowed subject to the petitioner paying a sum of Rs.1500/- within two weeks from the date of this judgment. P. BHAVADASAN, JUDGE sb.