IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23799 of 2008(G)
1. BALASUBRAMANIAN
... Petitioner
Vs
1. AJITH PRASAD THAMPY AND ANOTHER
... Respondent
For Petitioner :SRI.K.G.BALASUBRAMANIAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/08/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.23799 of 2008
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Dated this the 7th August, 2008.
J U D G M E N T
This petition is filed under Article 227 of the
Constitution of India challenging Ext.P7 order passed by Munsiff,
Ernakulam, in I.A.No. 3333 of 2008 in O.S.No.633 of 2007.
I.A.No.3333 of 2008 is an application filed under Rule 17 of Order VI of
Code of Civil Procedure. Learned Munsiff allowed the application for
amendment on payment of cost of Rs.1000/= holding that it is only
after recording the evidence, plaintiffs came to know that Advocate
Commissioner has not correctly identified the way, and, therefore,
amendment petition is to be allowed.
2. Learned counsel appearing for the petitioner argued
that learned Munsiff did not consider the effect of proviso to Rule 17 of
Order VI of Code of Civil Procedure. The learned counsel argued that
exercise of due diligence has to be established by the plaintiffs to the
satisfaction of the court and omission to file an application before the
commencement of the trial was not considered and when even
according to the plaintiffs, Commissioner could not identify plaint B
W.P.(C) No.23779 of 2008
2
schedule properties, it cannot be said that with due diligence, they
could not find out the omission, and, therefore, they are not entitled
to file application after the commencement of the trial.
3. On hearing the learned counsel, I do not find any
reason to interfere with Ext.P7 order. The suit is only for a permanent
prohibitory injunction restraining defendants from making any
construction or trespassing into plaint B schedule property, and for a
mandatory injunction directing defendants to remove the basement
constructed in the plaint B schedule property. Without establishing the
identity of plaint B schedule property, plaintiffs cannot claim a decree
in respect of plaint B schedule property. If plaint B schedule property
is not identified, I do not find any reason, why petitioner is aggrieved
by Ext.P7 order. The learned counsel pointed out that documents
marked and Ext.P4 sketch establish non existence of plaint B schedule
way. Petitioner is at liberty to point these facts before the court
below, while hearing the suit. Petitioner is also entitled to challenge
Ext.P7 order, if necessary, along with the final judgment. Writ
petition is dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.