IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 7TH JUNE 2007 / 17TH JYAISHTA 1929 WP(C).No. 18875 of 2004(V) -------------------------- OS.136/2000 of MUNSIFF COURT,HARIPAD .................... PETITIONERS: ---------------------- 1. RADHAKRISHNA MENON, AGED 56 YEARS, MOOLAYIL VEETIL, MAHADEVIKADU MURI, KARTHIKAPPALLY VILLAGE. 2. SAROJINIAMMA, AGED 50 YEARS, W/O. RADHAKRISHNA MENON, MOOLAYIL VEETIL, MAHADEVIKADU MURI, KARTHIKAPPALLY VILLAGE. BY ADV. SRI.SAJITH KUMAR V. SRI.HAREESH.M RESPONDENTS: ------------------------ 1. GOPAKUMAR, AGED 50 YEARS, S/O.CHELLAPPAN THAMBI, RESIDING AT PLAKATTU VEETTIL, NANGIRKULANGARA MURI, PALLIPADU VILLAGE, (FROM PLAKEEZHIL VEETIL, MAHADEVIKADU MURI, KARTHIKAPPALLY VILLAGE). 2. SOMAN PILLAI, AGED 58 YEARS, DEEPATHIYIL, CHADIYARA LINE, THIRUVANANTHAPURAM. 3. RAVEENDRAN NAIR, AGED 55 YEARS, PUTHENPURAYIL, MAHADEVIKKADU MURI, KARTHIKAPPALLY VILLAGE. BY ADV. SRI.S.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.18875/2004 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORIGINAL SUIT NO.136/2000 FILED BY THE PETITIONER BEFORE THE HONOURABLE MUNSIFF'S COURT, HARIPAD. EXT.P2: COPY OF THE COMMISSION REPORT FILED BY G.SHIMURAJ BEFORE THE HONOURABLE MUNSIFF'S COURT HARIPAD IN O.S.136/2000 DTD. 20/05/2000. EXT.P3; COPY OF THE 2ND COMMISSION REPORT FILED BY G.SHIMURAJ BEFORE THE HONOURABLE MUNSIFF'S COURT HARIPAD IN O.S.136/2000 DTD.13/07/2000. EXT.P4: COPY OF THE AMENDMENT APPLICATION WITH AFFIDAVIT IN O.S.136/2000 FILED BY THE PETITIONER BEFORE THE HONOURABLE MUNSIFF'S COURT, HARIPAD. EXT.P5: COPY OF THE ORDER IN I.A.431/2004 IN O.S.136/2000 DTD. 7/04/2004 OF THE HONOURABLE MUNSIFF'S COURT, HARIPAD. EXT.P6: COPY OF THE SALE DEED DTD. 4/12/2001 EXECUTED BY THE RESPONDENTS AT CHEPPAD SUB-REGISTRY. /TRUE COPY/ Kss M.N.KRISHNAN, J. ----------------------------- WP(C)No. 18875 OF 2004 V ----------------------------- Dated this the 7th June, 2007. JUDGMENT This writ petition is preferred to quash the order in I.A.431/04 in O.S.136/00. This is an application for amendment of the plaint. After hearing both sides the court below found that if the pleadings are allowed to be amended it would alter the very structure of the case and it will be nullifying the effect of evidence brought in by the defendants. Under Order VI Rule 17 ordinarily an amendment has to be filed before trial has commenced and an exception is when the court is satisfied in spite of due diligence the party could not have raised the matter before the commencement of the trial. The suit is for a declaration with respect to the right of a way and a prohibitory injunction and specific pleadings are incorporated regarding the manner in which it is situated. A perusal of the order would reveal that what is sought to be incorporated by virtue of an amendment is to change the basic structure of the pleading and to undo the evidence that has brought by the evidence in trial. So, when the circumstances are so an amendment cannot be allowed to deprive the right of the other side. Similarly there are no circumstances to see that these materials were not WPC 18875/04 2 available to the plaintiffs in spite of due diligence before the commencement of the trial. Therefore the order under challenge does not suffer from any infirmity and therefore the writ petition is dismissed. M.N.KRISHNAN Judge jj