IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 OP(C).No. 2414 of 2011(O) ------------------------------------ OS.91/2008 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD .................... PETITIONER: -------------------- A.K. SUDHAKARAN, S/O. KUNCHU GUPTHAN, AGED 55 YEARS, KIZHAKKETHIL ATHIPATTA KALATHIL, THACHANATTUKARA AMSOM AND DESOM, MANNARKKAD TALUK. BY ADV. SMT.T.D.RAJALAKSHMI, SRI.R.SREEHARI. RESPONDENT(S): ------------------------- 1. MOOSA, S/O. KUNHANU, CHERIPURATH VEETTIL, THACHANATTUKARA AMSOM DESOM, MANNARKKAD-678 583. 2. KAMALAKSHY AMMA, W/O. APPU NAIR, KINARATH THEKKETHIL, KUNDURKUNNU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD-678 583. 3. JAYAPRAKASH, S/O. KAMALAKSHY AMMA, KINARATH THEKKETHIL, KUNDURKUNNU, THACHANATTUKARA AMSOM DESOM, MANNARKKAD-678 583. R2 & R3 BY ADV. SRI.T.SETHUMADHAVAN, SRI.PUSHPARAJAN KODOTH, SRI.K.JAYESH MOHANKUMAR, SMT.VANDANA MENON, SMT.ANJU P.NAIR. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2011, ALONG WITH OPC NO. 2666 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 2414 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SALE DEED NO.4610/2007 DATED 20/07/2007 OF S.R.O., MANNARKAD. EXT.P2: COPY OF THE POSSESSION CERTIFICATE DATED 19/04/2008 ISSUED BY THE VILLAGE OFFICER, THACHANATTUKARA VILLAGE. EXT.P3: COPY OF THE PLAINT IN O.S. NO.91/2008 FILED BEFORE THE MUNSIFF MAGISTRATE COURT, MANNARKKAD. EXT.P4: COPY OF THE JOINT WRITTEN STATEMENT FILED BY 2ND & 3RD DEFENDANT IN O.S.91/2008OF MUNSIFF MAGISTRATE COURT, MANNARKKAD. EXT.P5: COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S. NO.91/2008 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD DATED 06/07/2010. EXT.P5(a): COPY OF THE PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S. NO.91/2008 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD. EXT.P6: COPY OF THE OBJECTION FILED BY THE PETITIONER AGAINST THE COMMISSIONER'S REPORT EXT.P5. EXT.P7: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.862/2010 IN O.S.91/2008 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD. EXT.P8: COPY OF THE COUNTER FILED IN I.A.862/2010 IN O.S.NO.91/2008 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD BY RESPONDENTS 2 & 3. EXT.P9: COPY OF THE ORDER PASSED IN I.A.862/2010 IN O.S.91/2008 DATED 17/06/2011 OF THE MUNSIFF MAGISTRATE COURT, MANNARKKAD. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).Nos.2414 and 2666 of 2011 --------------------------------------- Dated this 30th day of September, 2011 JUDGMENT These original petitions are in challenge of orders passed by the learned Munsiff-Magistrate, Mannarkkad refusing to remit the report and plan submitted by the Advocate Commissioner and to allow amendment of the plaint to incorporate a prayer for declaration of title. 2. In both the cases, respondents 2 and 3 appear through counsel. First respondent is served in both the cases. 3. Petitioner filed O.S.No.91 of 2008 in the Court of learned Munsiff-Magistrate, Mannarkkad originally, for a decree for prohibitory injunction to restrain the respondents from removing laterite stone from the western side of the suit property. Petitioner claimed that the suit property belongs to him. Respondents 2 and 3 challenged the various averments in the plaint and denied title of petitioner. Learned Munsiff- Magistrate appointed a survey commission to identify the suit property in the light of the contention raised by respondents 2 and 3. Advocate Commissioner submitted Exts.P5 and P5(a), report and plan. Petitioner filed objection to the said report and O.P(C).Nos.2414 and 2666 of 2011 -: 2 :- plan and filed I.A.No.862 of 2010 to remit the same. That application was dismissed by Ext.P9, order. That order is under challenge in O.P(C).No.2414 of 2011 . 4. During the pendency of O.P(C).No.2414 of 2011, petitioner filed I.A.No.491 of 2011 to amend the plaint to incorporate a prayer for declaration of title and other reliefs. That application was dismissed by the learned Munsiff- Magistrate as per Ext.P12, order (in O.P(C).No.2666 of 2011). That order is under challenge in O.P(C).No.2666 of 2011. 5. Learned counsel for petitioner contends that Exts.P9 and P12, orders referred to above are unsustainable. It is contended by the learned counsel that so far as Ext.P9, order is concerned, learned Munsiff-Magistrate has not referred to the objection which petitioner has raised to Exts.P5 and P5(a), report and plan. It is contended that proper identification of the property is required in the nature of the contentions respondents 2 and 3 have raised and that there are infirmities in the report and plan. So far as Ext.P12, order challenged in O.P(C).No.2666 of 2011 is concerned, it is argued that dismissal of I.A.No.491 of 2011 is for the reason that it is belated and that amendment is not on the cause of action (pleaded in the original plaint). It is contended that it was open to the petitioner to file a fresh suit on O.P(C).Nos.2414 and 2666 of 2011 -: 3 :- title as claimed in I.A.No.491 of 2011 and that the object of amendment is to avoid multiplicity of suits. According to the learned counsel, when amendment could be made to the existing plaint to settle the real controversy between the parties the court below should not have refused to do so. It is also pointed out that since trial of the case has not commenced, it cannot be said that respondents would be put to any prejudice due to allowing the amendment. The further contention is that while seeking amendment of plaint to incorporate a prayer for declaration of title over the suit property, it need not necessarily be on the cause of action which petitioner has pleaded in the original plaint where a decree for injunction is sought for. The contention which respondents 2 and 3 have raised in their written statement as to the title of petitioner could give the petitioner a cause of action to seek a declaration of his title, it is argued. 6. Learned counsel for respondents 2 and 3 contended that the suit is of the year, 2008 and it is only when the suit was posted for trial in the list on 04.08.2011 that petitioner thought of seeking amendment of plaint. The application is filed on the previous day - 03.08.2011. It is highly belated as rightly held by the learned Munsiff-Magistrate. It is also contended that if petitioner is so advised, it is open to him to withdraw the present O.P(C).Nos.2414 and 2666 of 2011 -: 4 :- suit and file a comprehensive suit on title as now he pleads in I.A.No.491 of 2011. 7. I shall first consider whether amendment sought for ought to have been allowed. Rule 17 of Order VI of the Code of Civil Procedure enables a party to seek amendment of his pleading at any time before pronouncement of judgment provided it is necessary to determine the real question in controversy between the parties. No doubt, the proviso incorporated by Amendment has made a fetter on that right of the parties - if amendment is sought for after the trial has commenced, the Court shall not allow such amendment unless it is shown that in spite of exercise of due diligence the party could not seek the amendment. That proviso has no application to the facts of this case since the trial has not commenced. True that the suit as originally filed is one for prohibitory injunction alleging a particular cause of action. But respondents 2 and 3 in their written statement denied the title claimed by petitioner. When title is denied and when petitioner thought that the said denial cast a cloud on his title it is open to him seek a declaration as Sec.34 of the Specific Relief Act enables. Even the contentions raised by respondents 2 and 3 in the written statement can afford a cause of action for petitioner to seek amendment of the plaint O.P(C).Nos.2414 and 2666 of 2011 -: 5 :- to incorporate a prayer for declaration of the title he claims. I must also bear in mind that 'cause of action' means a bundle of facts which gives rise to a right of action. The contention raised by respondents 2 and 3 in their written statement regarding title claimed by the petitioner is a material fact on which petitioner could have a right of action. Therefore learned Munsiff- Magistrate was not right in observing that since the cause of action pleaded in the plaint is one thing, there could be no amendment of the plaint to incorporate a prayer for declaration of title. I must also bear in mind that when a request for amendment is considered, it is not open to the Court to decide the merit of the claim sought to be incorporated by amendment. Whether, petitioner would succeed on the prayer for declaration of title sought to be incorporated by amendment is a different matter. 8. No doubt, the application came at the fag end of proceeding, on the previous day of the day the case was to be taken up for trial in the list. But delay in filing the application and the consequent inconvenience caused to respondents 2 and 3 could be compensated in terms of cost. 9. Having regard to the extent of land in respect of which the suit is instituted and considering all other relevant O.P(C).Nos.2414 and 2666 of 2011 -: 6 :- circumstances I am inclined to think that I.A.No.491 of 2011 could be allowed on terms of cost of `.5,000/- payable to respondents 2 and 3. 10. Coming to Ext.P9, order challenged in O.P(C).No.2414 of 2011, that order was passed at a time when the suit was merely for injunction and as the decision of the Apex Court goes, the Court while considering the relief of injunction is not required to go into the intricate questions of title. In a suit for injunction, reference to title is normally required for ascertaining whether the plaintiff is in possession of the suit property. The Supreme court has also stated in Anathula Sudhakar Vs. P.Duchi Reddi (Dead) by Lrs. and Ors. ((2008)4 SCC 594) that when complicated questions of title are involved in a suit for injunction, parties can be relegated to file a comprehensive suit on title. Ext.P9, order on the application to remit Exts.P5 and P5 (a), report and plan comes at a time learned Munsiff-Magistrate was not concerned with complicated questions of title. Now, while deciding O.P(C).No.2666 of 2011, I held that request of petitioner/plaintiff for amendment of plaint to incorporate the prayer for declaration of title has to be allowed on terms of cost. It follows that the request made by petitioner on I.A.No.862 of 2010 to remit Exts.P5 and P5(a), report and plan has to be O.P(C).Nos.2414 and 2666 of 2011 -: 7 :- reconsidered by the learned Munsiff-Magistrate in the light of the amendment allowed to the plaint vide judgment in O.P(C). No.2666 of 2011. In the view I have taken, Ext.P9, order is liable to set aside and I.A.No.862 of 2010 is to be remitted to the Court of learned Munsiff-Magistrate for fresh decision. Resultantly these original petitions are disposed of as follows: (I) O.P(C).No.2666 of 2011 is allowed as follows: (a) Ext.P12, order dismissing I.A.No.491 of 2011 is set aside and that application is allowed on condition that petitioner pays to respondents 2 and 3/deposits in the court below for such payment `.5,000/- (Rupees Five Thousand Only) (to be shared by respondents 2 and 3 equally) as cost within three weeks from this day. (b) In case the above condition is complied and I.A.No.491 of 2011 stands allowed, petitioner shall carry out the amendment within two weeks from the date on which payment/deposit as aforesaid is made. (c) On such amendment being carried out, respondents will get opportunity to file additional written statement in answer O.P(C).Nos.2414 and 2666 of 2011 -: 8 :- to the amended plaint. (d) In case the condition referred in clause (a) above regarding payment/deposit of cost is not complied, O.P(C).No.2666 of 2011 will stand dismissed in confirmation of Ext.P12, order. (II) O.P(C).No.2414 of 2011 is allowed as follows: (a) Ext.P9, order dismissing I.A.No.862 of 2010 is set aside and that application is remitted to the Court of learned Munsiff- Magistrate for fresh decision in the light of the amendment if any made to the plaint as ordered in O.P(C).No.2666 of 2011. Learned Munsiff-Magistrate after hearing both sides shall pass appropriate order on I.A.No.862 of 2010. (b) In case for non compliance of condition O.P(C).No.2666 of 2011 stand dismissed, it follows that O.P(C).No.2414 of 2011 will also stand dismissed in confirmation of Ext.P9, order. (THOMAS P JOSEPH, JUDGE) Sbna/-