IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 WP(C).No. 29194 of 2008(A) -------------------------- AGAINST THE ORDER IN I.A 5834/2008 IN OS.1172/1998 of RENT CONTROL COURT, TVM .................... PETITIONER(S): ------------------------- 1. SYAMALA, D/O. CHELLAMMA, T.C 12/1444-2, LAW COLLEGE ROAD, THIRUVANANTHAPURAM. 2. LEELA, D/O. CHELLAMMA, T.C. 12/1444-2, LAW COLLEGE ROAD, THIRUVANANTHAPURAM. 3. LATHA, D/O. CHELLAMMA, T.C 12/144-2, LAW COLLEGE ROAD, THIRUVANANTHAPURAM. 4. THULASI, S/O. RAGHAVAN, AGED 51 YEARS, RESIDING AT C. 12/144-1, LAW COLLEGE ROAD, OPP. VIKAS BHAVAN, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) 2 RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. LABOUR COMMISSIONER, STATUE JUNCTION, THIRUVANANTHAPURAM. 3. PUBLIC WORKS DEPARTMENT, PUBLIC OFFICE COMPOUND, MUSEUM, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.29194 of 2008 = = = = = = = = = = = = = = Dated this the 30th day of September, 2008 JUDGMENT Petitioners are the plaintiffs in O.S.No.1172 of 1998 on the file of the Additional Munsiff's Court(Rent Control Court), -V, Thiruvananthapuram. The said suit was one for injunction filed against the State of Kerala, Labour Commissioner and the Public Works Department. The plaintiffs had taken out a Commission along with the suit. Some time in 1998, the suit was decreed ex parte. The State filed an appeal against the ex parte decree as A.S.No.40 of 2005 before the District Court with an enormous delay. The delay was condoned and the appeal was entertained and subsequently allowed on 21.5.08 and remanded to the trial court after giving the defendants an opportunity to file a written statement. The lower appellate court also fixed a time limit of 6 months for the disposal of the suit. The written statement was filed on 23.6.08. The issues were framed and on 25.6.08 the case was posted for pre-trial steps to 7.7.08. On that day the plaintiffs filed Exts.P3 and P4 applications for amendment of the plaint and for issuing a second Commission. Both the said applications were W.P.(c).No.29194 of 2008 2 posted for objections initially to 9.7.08 and to 14.7.08 indicating that no further time will be granted. On 4.7.08, neither the plaintiffs nor their counsel were present before the court. The 2nd defendant was present in the court. The case was adjourned to 15.7.08. On that day also the same position continued. On 15.7.08 both the applications were dismissed for default/ non prosecution. Thereafter, the plaintiffs filed I.A.No.5834 of 2008 on 19.7.08 seeking restoration of Exts.P3 and P4 applications which were earlier dismissed for default. As per the Ext.P7 impugned order dated 23.7.08, the said application has been dismissed. Hence this writ petition. 2. The learned counsel for the petitioner made the following submissions before me in support of the writ petition :- Eventhough the suit is of the year 1998, it was decreed ex party in the year 1998 itself and it was the State who took up the matter in appeal with an enormous delay of more than 6 years and the plaintiffs are not responsible for the delay on the part of the State and its officials. The written statement was filed only on 23.6.08 and issues were framed only on 25.06.08. It was on the date posted for pre-trial steps that plaintiffs filed Exts.P3 and P4 W.P.(c).No.29194 of 2008 3 applications for amendment of the plaint and for issuing another Commission. Those two petitions have been dismissed for default without considering on merits. 3. It is true that the petitioner filed the two petitions on the date posted for pre-trial steps. But the suit is one for injunction filed in the year 1998. The prayer in Ext.P3 application for amending the plaint will go to show that the plaintiffs want to incorporate matters which came into existence long after the institution of the suit. Instead of one schedule, two schedules as A Schedule and B Schedule were sought to be incorporated in the plaint. Reliance placed on Ext.P5 judgment of this Court in a writ petition filed by one of the defendants cannot alter the scope of the suit nor can it be a justification for pleading events which took place after institution of the suit in respect of a cause of action alleged in the year 1998. If the amendment of the plaint as proposed is allowed it will completely alter the nature of the suit. So is the case with Ext.P4 application for issuing a Commission. In the said application also the request was to measure the plaint A Schedule property with the assistance of a Surveyor and to report regarding the existence of the plaint B Schedule pathway. In the W.P.(c).No.29194 of 2008 4 affidavit in support of the petition, it is stated that a way which has been provided by plaintiffs for access to the office of the 2nd defendant has come into existence only in 2006 and that was not noted in the earlier Commission Report. The original plaint did not contain those details. It is well settled that the decision in a suit will ordinarily relate back to the date of institution of the suit. It was in Ext.P3 petition that the proposal to divide the plaint schedule into A Schedule and B schedule has been proposed. Even if the Exts.P3 and P4 applications were to be considered on merits they cannot be allowed for the reasons mentioned above. Hence, the court below was justified in dismissing the petition for default. The dismissal could not have been challenged by filing one restoration application which was also dismissed for valid reasons. I see no merit in the writ petition which is accordingly dismissed. The proper course open to the plaintiff was to institute a fresh suit on the basis of the changed cause of action. Dated this the 30th day of September, 2008. V. RAMKUMAR, JUDGE sj