IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31650 of 2008(P)
1. JOHNY ,S/O. THER MADAM PARANHJUNNY
... Petitioner
Vs
1. JOSE, S/O. THER MADAM PARANHJUNNY
... Respondent
2. FRANCIS, S/O. JOSE,
For Petitioner :SRI.A.T.ANILKUMAR
For Respondent :SRI.V.CHITAMBARESH (SR.)
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :12/10/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.31650 OF 2008
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Dated this the 12th day of October 2009
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JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) Call for the entire records leading to
Ext.P4 and quash the same by issuing a writ a
certiorari or any other appropriate order or
direction.
ii) Set aside Ext.P4 order and allow the
prayer for declaration sought in I.A No.1771/2007
in O.S No.63/2005.
iii) Grant such other relief which are
just and necessary in the interest of justice.
2. Petitioner is the plaintiff in O.S
No.63 of 2005 on the file of Munsiff Court,
Vadakanchery. Suit was filed for a decree of
perpetual prohibitory injunction, and the
W.P.(C).No.31650 OF 2009 Page numbers
respondents are the defendants. Resisting the suit
claim, the defendants filed a written statement
contending that they are in possession of the
plaint property. Plaintiff then applied for an
amendment to seek additional relief of declaration
of title and recovery of possession. That
amendment was objected to by the defendants filing
objections. The learned Munsiff after hearing both
sides declined the amendment sought for vide Ext.P4
order. Propriety and correctness of Ext.P4 order
is challenged in the writ petition invoking the
supervisory jurisdiction vested with this court
under Article 227 of the Constitution of India.
3. I heard the counsel on both sides.
Proposed amendment was declined by the court below
under the impugned order, according to the learned
counsel for the petitioner, without taking into
account the need and necessity for incorporating
W.P.(C).No.31650 OF 2009 Page numbers
such an amendment for a proper adjudication of the
suit and its fair disposal. The reasons given
under the order for turning down the amendment
sought for, it is submitted, are not correct. The
learned counsel for the respondents pointing out
that in the writ petition, petitioner/plaintiff
has confined his challenges against Ext.P4 order
only in respect of the amendment declined as to the
declaration of title sought for, but not relating
to recovery of possession, submitted that, if at
all the amendment is found allowable in reversal of
Ext.P4 order passed by the court below, it may be
allowed in respect of the amendment relating to
declaration of title alone. Perusing Ext.P4 order,
challenge impugned in the writ petition, I find
that the learned Munsiff was not correct in stating
that by allowing the proposed amendment, the
character of the suit will change. When the decree
of injunction sought by the plaintiff, is
W.P.(C).No.31650 OF 2009 Page numbers
challenged by the defendants disputing his right
over the property contending that they are in
possession it may be become necessary for the
plaintiff to prove his title over the property as
well, for which, an amendment of the suit for
declaration of his title may become essential.
Amendments are intended to resolve the real
controversies arising in a lis between the parties,
and where it is so found essential for a fair
adjudication of the dismissal, needless to point
out, such amendment has to be allowed to avoid
multiplicity of proceedings and to advance justice.
Ext.P4 order in the given facts of the case cannot
be sustained. True, the petitioner in the writ
petition has stated that with respect to the
amendment sought for, he is interested only in
canvassing the amendment for declaration of title
but not of recovery of possession. That can be
canvassed by the respondents/defendants before the
W.P.(C).No.31650 OF 2009 Page numbers
court below to consider as to what extent the
amendment can be allowed. Setting aside Ext.P4
order, I direct the court below to consider Ext.P3
amendment application moved by the plaintiff taking
note of the observations made above, and dispose it
in accordance with law. Writ petition is disposed
as indicated above.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv