IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34499 of 2008(F)
1. PADMANABHA KURUP
... Petitioner
Vs
1. PUTHUVEETTIL DEVASWOM
... Respondent
For Petitioner :SRI.P.N.RAMAKRISHNAN NAIR
For Respondent :SMT.C.G.BINDU
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :23/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.34499 of 2008 - F
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Dated this the 23rd day of July, 2009
J U D G M E N T
This writ petition is filed seeking the following reliefs:
“i) To call for the records in O.S.No.238/2001 on the
file of the Additional Munsiff Court, Alappuzha.
ii) To issue a writ or direction setting aside the
Exhibit P6 order, dated 03.09.2008 and allow Exhibit
P4 petition.”
2. Petitioner is the plaintiff in O.S.No.238/2001 on the
file of the Additional Munsiff Court, Alappuzha and the
respondents are the defendants. Suit is one for declaration of
title, recovery of possession and injunction. After the evidence
was recorded the petitioner moved an application for amendment
of the plaint under Order VI Rule 17 CPC which was objected to
by the defendants. In the plaint allegations, the case of the
plaintiff was that out of 50 cents obtained by plaintiff 25 cents
had been sold to one Vasudevan and in respect of the remaining
25 cents incorporating it as A schedule, item No.1, he claimed
reliefs in the suit. There is a second item also in the suit which is
W.P.(C).No.34499 of 2008 – F
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not emerging for consideration in the present petition. The
amendment application moved setting forth a case that the
averment made in the plaint as to conveying of 25 cents out of
the 50 cents to the above said Vasudevan was a mistake and
actually the property conveyed to him was different. That
mistake crept in the plaint on account of inadvertence on the part
of the counsel who drafted the plaint was the case of the plaintiff.
The amendment sought for was seriously opposed by the
defendant contending that it is devoid of any merit and intended
to prolong and protract the litigation. The learned Munsiff, after
hearing both sides, disallowed the amendment application.
Ext.P6 is the copy of that order. Impeaching the propriety and
correctness of Ext.P6 order, petitioner has filed this writ petition
invoking the supervisory jurisdiction vested with this Court under
Article 227 of the Constitution of India. During the pendency of
the petition, the petitioner passed away and his legal heirs have
been impleaded as additional petitioners 2 to 4 in the petition.
3. I heard the counsel on both sides.
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4. Having regard to the submissions made and the facts
and circumstances presented with reference to Ext.P6 order and
other materials tendered in the petition, I find the proposed
amendment as rightly contended by the defendants if allowed
would enable the plaintiff to advance a new case which in all
likelihood would cause prejudice to the defendnats and further
prolong the litigation. So much so, the disallowing of the
amendment by the court below under Ext.P6 order cannot be
termed as improper. Learned counsel for the petitioner
submitted that since the suit is likely to fail on account of
nonallowing of the amendment application especially, when the
relief for recovery of possession is sought for, the plaintiff may be
permitted to withdraw the suit with liberty to file a fresh suit.
The question of granting permission to file a fresh suit has to be
considered by the court below, if a proper application thereof is
moved by the plaintiff as provided under Order XXIII Rule 1 CPC.
I find considerable force in the submission made by the learned
counsel for the petitioner that a formal defect which had crept in
the plaint would stand in the way of the plaintiff in getting the
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relief sought for in the suit. Court below will take note of it while
considering the application, if any, moved by the petitioner for
seeking withdrawal of the suit with liberty to file fresh suit. Of
course, the court can also consider the question of awarding cost
to the opposite party, if at all, permission is granted to institute a
fresh suit.
Subject to the above observations, this writ petition is
closed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-