IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20374 of 2007(A)
1. N.PADMAVATHY, D/O. NARAYANAN,
... Petitioner
Vs
1. N.GANESHAN, S/O. NARAYANAN,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
3. THE DIRECTOR,
4. CORPORATION OF THIRUVANANTHAPURAM,
5. THE MANAGING DIRECTOR,
For Petitioner :SRI.K.M.FIROZ
For Respondent :SMT.AMBIKA DEVI, SC, KWA
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :15/10/2009
O R D E R
P.Q.BARKATH ALI, J.
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W.P.(C).No. 20374 OF 2007
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Dated this the 15th day of October, 2009
JUDGMENT
Petitioner is the 5th defendant in O.S.No.476/2006 on the file of
Additional Munsiff Court, Thiruvananthapuram. Petitioner is the sister
of the first respondent/plaintiff. The plaintiff filed a suit before the
Munsiff Court seeking a permanent prohibitory injunction restraining
the petitioner herein from making any further construction over a 50
year old mud sewage pipe line, which is passing underneath the
property of the petitioner herein and also for a mandatory injunction
directing defendants 1 to 4 to demolish the plaint B schedule
construction and to declare the title of the plaintiff over the sewage
pipeline. First respondent is the petitioner in the suit. The second
respondent /first defendant is the state presented by the Chief Secretary.
The third respondent/second defendant is Director, Department of
Collegiate Education. The fourth respondent/third defendant is
Corporation of Thiruvananthapuram. The fifth respondent /fourth
defendant is Kerala Water Authority.
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2. The plaintiff filed I.A.No.2721/2007 seeking amendment of
the plaint by adding a new prayer to pass a mandatory order of
injunction directing the fourth respondent to give necessary steps to
remove the D schedule block in the plaint C schedule pipe line. The
Munsiff allowed the petition by Ext.P7 order dated 13-04-2007. The
writ petitioner challenges the said order in this writ petition. According
to him, such a prayer will alter the entire character of the suit.
3. On going through the impugned order, it is seen that the
Munsiff has allowed the application on the ground that the amendment
sought for will not alter the basic character of the suit . I am unable to
agree. The suit was for a declaration of title of the plaintiff over the
plaint schedule property and for a permanent prohibitory injunction
restraining the petitioner herein from making any further construction
over a 50 year old mud sewage pipe line, which is passing underneath
the property of the petitioner herein and also for a mandatory
injunction directing the defendants 1 to 4 to demolish the plaint B
schedule construction. The amendment sought for is to pass a
mandatory order of injunction directing the fourth respondent to give
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necessary steps to remove the D schedule block in the plaint C schedule
line which is entirely a new prayer and will alter the nature of the suit.
It will have a different cause of action in the suit.
The 4th respondent water authority has filed a counter affidavit
to the effect that the line in question is a very old mud pipe, that even if
block occurs, it cannot be rectified and it has suggested for having an
alternate sewerage line through the pathway to the petitioner’s house.
The 1st respondent/plaintiff filed I.A.No.7704 of 2005 before the trial
court claiming the very same relief which the learned Munisff had
refused to grant by order dated June 20, 2006. Challenging the said
order, the 1st respondent/plaintiff has filed W.P.(C) No.22882 of 2006
and this Court by judgment dated October 9, 2006 dismissed the writ
petition. Under these circumstances, I feel that the the learned Munsiff
is not justified in allowing amendment application I.A. NO.2721 of
2007.
In the result, the writ petition is allowed, the impugned order is
set aside and the I.A.No.2721 of 2007 is dismissed. The parties shall
bear their own costs. The 1st respondent/plaintiff is entitled to file a
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separate suit, if he chooses for the relief claimed in the above
amendment application.
P.Q.BARKATH ALI
JUDGE
sv.
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