IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34822 of 2008(U)
1. K.SOMAN NAIR, S/O.A.KRISHNA PILLAI,
... Petitioner
Vs
1. K.SYAMALAKUMARI AMMA, AGED 48 YEARS,
... Respondent
2. SANIL.J.,AGED 36 YEARS,
For Petitioner :SRI.V.N.GOPALAKRISHNAN NAIR
For Respondent :SRI.RAM MOHAN.G.
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :10/03/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
-------------------------------
W.P.(C).NO.34822 OF 2008 ()
-----------------------------------
Dated this the 10th day of March, 2010
J U D G M E N T
Petitioner is the plaintiff in O.S.No.583 of 2007 on the
file of the Munsiff (Rent Control) Court, Thiruvananthapuram.
Suit is one for declaration of prescriptive easement and for
injunction. Suit claim was resisted by the 2nd defendant, but,
practically supported by the 1st defendant. Plaint ‘A’ schedule
property, it is alleged, belong to the 1st defendant and ‘B’
schedule to the 2nd defendant. A pathway is running through
‘A’ and ‘B’ schedule properties and it leads to the burial place
of the parents of the plaintiff and 1st defendant was the case of
the plaintiff to claim prescriptive easement over a pathway
described as ‘C’ schedule as running through ‘A’ and ‘B’
schedule properties. After the written statement was filed by
the defendants, plaintiff moved an application for amending
the plaint to raise some more allegations and also include ‘D’
schedule to specify the burial place of his parents. That
application was objected to by the 2nd defendant. The learned
WPC.34822/08 2
Munsiff, after hearing both sides, dismissed the application
vide Ext.P5 order. Propriety and correctness of that order is
challenged in the writ petition invoking the supervisory
jurisdiction vested with this Court under Article 227 of the
Constitution of India.
2. I heard the counsel on both sides. Perusing the
impugned order with reference to the other exhibits produced
in the writ petition, I find that the dismissal of the application
for amendment in its entirety was not proper. Ext.P1 is the
copy of the plaint and Ext.P3 is the copy of the amendment
application. In Ext.P3 amendment application, plaintiff has
sought for correcting some mistakes which had occurred in
showing the relationship of the parties in the plaint. Even the
2nd defendant has not raised any objection in allowing that
part of the amendment sought for. Strangely enough, the
court below has not examined the merit of the amendment
application with reference to the reliefs canvassed in the suit
and also whether a declaration of prescriptive easement can
be claimed by any party without having any property closeby
WPC.34822/08 3
the property of the defendants over which such easement was
claimed as of right. In the present suit, the plaintiff has not
set up a right that he has any property beside ‘A’ and ‘B’
schedule. When that be so, the amendment sought for with
respect to ‘D’ schedule and the consequential allegations
sought to be introduced in the plaint do not arise for
consideration. So, that part of the order of the court below
declining the amendment is only to be approved but for
different reasons. But the amendment sought for with respect
to paragraphs 1 to 3 in Ext.P3, which relate to correction of
mistakes in the plaint already presented, deserve to be
allowed, and to that extent, the order of the court below shall
stand modified. Petitioner/plaintiff shall be permitted to
correct the plaint to the extent indicated above. Ext.P5 order
shall stand modified accordingly. Writ petition is accordingly
disposed.
S.S.SATHEESACHANDRAN
JUDGE
prp