IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 11534 of 2004(W)
1. ANNAM, AGED 87 YEARS,
... Petitioner
Vs
1. POULOSE, S/O.VENATTUPARAMBIL KUNJUVAREED
... Respondent
2. YACOB @ JACOB,
3. JISHO, S/O. VENATTUPARAMBIL PAULOSE
4. JIJO, S/O.VENATTUPARAMBIL POULOSE,
For Petitioner :SRI.RENJITH THAMPAN
For Respondent :SRI.S.SREEKUMAR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :02/07/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) No. 11534 OF 2004
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Dated this the 2nd day of July, 2007
JUDGMENT
Heard both sides. An application for amendment of a suit for
mandatory injunction based on a claim of easement of way was
dismissed by the learned Munsiff Magistrate stating that the proposed
amendment will amount to overhauling the plaint from top to bottom i.e.,
from the cause title to the schedule. The view of the learned Magistrate
is that Order VI Rule 17 permits correction of 2 or 3 errors in the plaint
alone.
2. I am unable to agree with the learned Munsiff. All amendments
which are necessary for resolving the real controversy between the
parties can be allowed at any stage of the proceedings. The only look
out should be whether in allowing the amendment any prejudice is being
caused to the adversary and whether the amendment will result in
injustice.
3. Ext.P1 is the amendment application. The first prayer in the
amendment application is that cause title of the plaint be changed so as
to add the name and address of a proposed additional defendant, i.e.,
additional 5th defendant, one Sri.Johny. The 7th prayer in the
amendment application is incorporation of an additional paragraph in the
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body of the plaint, i.e., para 6 A which contains certain allegations
against the proposed additional 5th defendant and lays foundation for the
plaintiff’s claim against the proposed 5th defendant. Thus a careful
reading of Ext.P1 will show that Ext.P1 was not an amendment
application simplicitor. It was an application for impleadment-cum-
amendment.
4. Having regard to the submissions which are addressed before
me by the learned counsel for the respondent, I am of the view that on
the facts of this case the petitioner was not entitled to seek impleadment
of the proposed additional 5th respondent through Ext.P1 a composite
application. I approve Ext.P2 order to the extent it declines prayers 1
and 7 in Ext.P1 application and prayers which have anything to do. But
as regards the other prayers in Ext.P1 which are also seen declined
under Ext.P2, I am in agreement with the learned counsel for the
petitioner in his submission that those prayers even if allowed will not
cause any legal prejudice to defendants 1 to 4 in the suit. Those
prayers should have been allowed by the learned Munsiff ensuring that
the petitioner plaintiff does not get away from the effect of fatal and
unwithdrawable admissions, if any, contained in the unamended plaint.
5. Under the above circumstance, I set aside Ext.P2 and direct
the learned Munsiff to take a fresh decision on Ext.P1 after hearing both
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sides. While taking fresh decision as directed above, the learned
Munsiff should have due regard to the judicial precedents which may be
cited by counsel on either sides covering the principles to be applied
while exercising powers under Order VI Rule 17. Fresh decision will be
taken by the learned Munsiff at the earliest and at any rate within two
months of receiving copy of this judgment.
It is also clarified that nothing stated in this judgment will preclude
the petitioner from filing separate application for impleading anybody
else including the proposed additional 5th respondent. If if any such
impleadment application is received by the court, the same will be
decided in accordance with law.
The Writ Petition is allowed to the above extent. No costs.
PIUS C. KURIAKOSE, JUDGE
btt
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