IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2736 of 2009(A)
1. SREENIVASAN, S/O.SREEDHARAN NAIR,
... Petitioner
Vs
1. SATHI, W/O. BALAKRISHNANA NAIR,MALIKAYIL
... Respondent
2. VIJAYASREE D/O.BALAKRISHNAN NAIR,
3. BIJU,S/O.BALAKRISHNAN NAIR,MALIKAYIL,
4. MANJUSHA, D/O.BALAKRISHNAN NAIR,
For Petitioner :DR.GEORGE ABRAHAM
For Respondent :SRI.PEEYUS A.KOTTAM
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :07/10/2010
O R D E R
HARUN-UL-RASHID,J.
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W.P.(C). NO.2736 OF 2009
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DATED THIS THE 7TH DAY OF OCTOBER, 2010
JUDGMENT
Ext.P6 order dated 1/12/2008 in I.A.No.3519/08 in
O.S.No.358/07 of the Munsiff’s Court, Muvattupuzha is under
challenge. Petitioner is the plaintiff in the suit. Respondents are
the defendants. The suit was filed for declaration of title and
possession of the plaint schedule property. The extent of property
scheduled in the plaint is 2 cents and 81 sq. metres comprised in
Sy.No.1298/6. Since the suit is for declaration of title, the survey
measurement was conducted. Exts.C3 and C3(a) are the
commission report and survey plan. Commissioner reported in
Ext.C3 that the survey number and extent of the property claimed
in the suit is 2.600 cents in Sy.No.1298/7. The Commissioner also
reported that the plaintiff is in possession of another extent of 950
sq. links of land in Sy.No.1312/7-B, 600 sq. links in Sy.No.1312/7-
A in addition to 2.600 cents. The Commissioner also located the
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southern property as belonging to the respondents. The extent of
the southern property is 10.250 cents in Sy.No.1312/7-A.
2. Finding that there is change in the survey number,
the plaintiff filed IA.1356/08 to correct the survey number of the
plaint schedule property. As per the amendment the plaint schedule
property is 2 cents and 81 sq. metres comprised in Sy.Nos.1312/7-
A and 1312/7-B. Later the court recorded the oral evidence
adduced by both sides. On 24/10/08 the plaintiff filed
I.A.No.3519/2008 for amendment. Now the amendment sought for
is in accordance with Ext.C3(a) survey plan. Plaintiff wanted to
amend the plaint stating that in addition to the property having title
over 2.600 cents, the other two items shown in Ext.C3(a) plan
found to be reported by the Commissioner in the possession of the
plaintiff, are sought to be added. Now the plaintiff wanted
declaration of title in respect of 2.600 cents of land in addition to
that he claims possessory title in respect of the additional extent
noted by the Commissioner.
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3. Learned Munsiff observed that if the proposed
amendment is allowed, plot Nos. 1 to 3 in Ext.C3(a) survey plan
will become the plaint schedule property and the reliefs sought for
in the plaint will be for declaration of plaintiff’s title and possession
over plot No.1 and declaration of plaintiff’s possession over plot
Nos. 2 and 3.
4. The suit was originally filed for declaration of
title and possession over 2 cents of land. Subsequetly, the plaint
was amended and the extent is changed as 2cents and 81 sq. meters.
At that time Ext.C3a plan shows that in addition to 2.600 cents of
land the plaintiff is in possession of 1.55 cents more. As per the
report, the total extent found to be in the possession of the plaintiff
is 4.15 cents. Ext.C3(a) plan is available at the time when the
petitioner moved for the lst amendment. At that time he has no case
that the extent of property has to be amended by filing necessary
petition seeking declaration of possession. Learned Munsiff found
that from the averments in IA.1356/08 it is clear that the plaintiff
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came to know the actual survey numbers of the plaint schedule
property before filing IA.No.1356/08 and before the
commencement of the trial. He was having clear idea regarding the
survey numbers and extent mentioned in Ext.C3(a). The court
found that after amending the plaint there is no justification for the
plaintiff in seeking further amendment in accordance with Ext.C3
(a) survey plan. The court below found that such an attempt is
only to overcome the evidence which had already been adduced.
The court also referred to the proviso to Order VI Rule 17 CPC
which mandates that no application for amendment shall be
allowed after the commencement of the trial, unless the court is
satisfied that in spite of due diligence, party could not have raised
the matter before the commencement of trial. I have gone through
Ext.P5 petition for amendment. There is no averment to the effect
that the application could not be filed before commencement of the
trial, in spite of due diligence. Ext.P6 order passed by the learned
Munsiff dismissing the application for amendment is therefore
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justified in all respects. No valid grounds are made out for
interference in the writ petition filed under Article 227 of the
Constitution of India.
Writ Petition is therefore dismissed.
The learned counsel for the plaintiff submitted that
by an oversight proper application was not filed inserting necessary
averments and reliefs, when IA.No.1356/08 was filed. Learned
counsel submitted that in fact the amendment sought for in the
present petition could have been inserted in the earlier petition filed
as I.A.1356/08. But by an omission on the part of the counsel, the
amendment application could not be filed at the right time, even
though the Commissioner in Ext.C3(a) plan reported that the
plaintiff is in possession of an extent of 4.15 cents of land including
2.600 cents of land for which he has title. The learned counsel
therefore sought permission of this Court to withdraw the suit for
the purpose of filing a fresh suit with comprehensive prayer. If such
an application is filed before the Munsiff’s Court, the learned
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Munsiff shall consider that application on merits and pass
appropriate orders.
Sd/-
HARUN-UL-RASHID,
Judge.
kcv.