IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5759 of 2008(I)
1. CHANDRALEKHA, W/O.MADHUSOODANAN NAIR,
... Petitioner
2. MADHUSOODANAN NAIR,
Vs
1. KERALA WATER AUTHORITY, REP. BY ITS
... Respondent
For Petitioner :SRI.ASP.KURUP
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/11/2008
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) No. 5759 of 2008
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Dated this the 13th day of November, 2008
J U D G M E N T
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Order dated 2.1.2008 in I.A. No.5242 of 2007 in O.S.
No.1388 of 2006 of the Additional Munsiff’s Court (Rent Control
Court), Thiruvananthapuram refusing amendment to the plaint
schedule is under challenge in this proceeding under Article
227 of the Constitution.
2. Heard both sides.
3. Exhibit P1 is the copy of plaint. Petitioners laid the
suit against the respondent seeking decree for prohibitory
injunction against interfering with their possession and
enjoyment of the schedule property described in the plaint
schedule as 4.200 cents in Sy.No.3283 lying within the
boundaries mentioned therein. Petitioners claimed that first
petitioner acquired title and possession of that property as per
Exhibit P2, settlement deed dated 15.4.2005 executed by
Madhusoodanan Nair, her husband (second petitioner). It is also
contended that petitioners are running hotel business in a 50
year old building in the said property. Respondent filed Exhibit
P5 written statement contending that the property over which
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petitioners claim title and possession is comprised in Sy.No.3597.
Petitioners have no right over the property comprised in Sy.No.3283.
According to the respondent, the building where petitioners are
running the hotel is situated in Sy.No.3597. Attempt of the petitioners
is to grab puramboke land. Respondent made a counter claim in
Exhibit P5 written statement seeking mandatory injunction to direct
the petitioners to demolish the unauthorised construction in the
schedule property. Petitioners answered that counter claim by
Exhibit P6, written statement wherein they claimed that the assignor
of second petitioner (who executed settlement deed in favour of first
petitioner), Gowri Appan got title over the property comprised in
Sy.Nos.3283 and 3597 as per partition deed No.3153 of 1973 and that
Gowri Appan assigned the property to the second petitioner but
wrongly describing it as comprised in Sy.No.3283 instead of 3597. It
is to amend the schedule of property in the plaint accordingly that
petitioners filed I.A. No.5242 of 2007. That application was opposed
by the respondent contending that if allowed, it would change the
character of the suit. Learned Additional Munsiff observed that though
petitioners claim that Gowri Appan had executed correction deed as
document No.4435 of 2006 clarifying the mistake in the survey
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number as above stated and that mistake in the plaint schedule
happened to be carried from the mistake that occurred in Exhibit P2
(which stands corrected by document No.4435 of 2006) but the
petitioners did not reveal the date on which Gowri Appan executed
correction deed No.4435 of 2006. Learned Additional Munsiff
observed that it is revealed that petitioners have no right over the
schedule property. It is also observed that if the amendment sought
for is allowed it will change the character of the suit and will cause
prejudice to the respondent. It is accordingly that application was
dismissed.
4. Learned counsel for the petitioners contended that the
description of the property and survey number in the plaint schedule
is a mistake which was carried into the plaint from Exhibit P2 which
stands corrected by Exhibit P4, correction deed No.4435 of 2006.
Learned counsel for the respondent contended that the attempt of the
petitioners is to establish right over the property to which petitioners
are not entitled.
5. I have gone through I.A. No.5242 of 2007. It is seen that
amendment sought for is regarding the description and survey
number of the property over which petitioners laid hands in the suit.
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Further amendment sought for is regarding the oldness of the
building. In the plaint schedule the oldness of the building is stated as
50 years whereas in the amendment sought for it is stated as 80
years. No amendment is sought regarding the boundary of the
property scheduled in the plaint. Description in Exhibit P2 shows that
it is exactly in tune with what is stated in the plaint schedule. Exhibit
P4 is the correction deed No.4435 of 2006 executed by Gowri Appan,
assignor of second petitioner. In that correction deed it is stated that
Gowri Appan got title over B schedule in partition deed No.3153 of
1973, he transferred that property to the second petitioner as per
document No.3707 of 2001 and that second petitioner settled that
property in favour of first petitioner as per Exhibit P2, settlement deed
No.2112 of 2005 but there happened to be mistake in the sale deed
No.3707 of 2001 and consequently in Exhibit P2, settlement deed
No.2112 of 2005 regarding survey number and description which he
corrected as per Exhibit P4.
6. Point for consideration is whether amendment can be
permitted. General principle regarding amendment is that all
amendments which are necessary to settle the dispute between the
parties are to be allowed provided it does not change the character of
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the suit and does not cause prejudice to the opposite party. In this
case, stating the survey number which according to the petitioners is
the correct one, they have answered the counter claim as seen from
Exhibit P6. While considering the counter claim made by the
respondent, trial court is required to consider the contention raised by
the petitioners that the schedule property is comprised in Sy.No.3597
(not in Sy.No.3283 as stated in the plaint schedule). Trial court
cannot refuse to consider that contention in Exhibit P6 merely for the
reason that in the plaint schedule a different survey number or
description is given. The claim made by the petitioners regarding
4.200 cents in Sy.No.3597 and tracing their right through sale deed
No.3707 of 2001 and partition deed No.3251 of 1973 is to be
adjudicated at least in the counter claim contained in Exhibit P5 in the
light of the contentions raised in Exhibit P6. Hence it cannot be said
that respondent will be prejudiced by allowing the amendment. After
all, court is not required to consider the merit of the matter required to
be introduced by amendment. What is to be considered is whether the
application is bona fide. Since the mistake in survey number
originated from Exhibit P2 which stands corrected by Exhibit P4 it
cannot be said that there was lack of bona fides on the part of the
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petitioners. After amendment of the plaint schedule it is open to the
respondent to plead by way of additional written statement if any and
prove that petitioners have no right over the property described in the
amended plaint schedule and that document of title relied by the
petitioners did not confer title on them over the said property. It is
seen from the order under challenge that learned Munsiff has not
considered these aspects of the matter. In the facts and
circumstances, I am inclined to think that learned Munsiff should have
allowed the amendment as prayed for.
Writ Petition therefore, is allowed. I.A. No.5242 of 2007 shall
stand allowed. Petitioners shall carry out the amendment within
fourteen days from this day or within such time as may be extended
by the court below for valid reasons. After the amendment is carried
out, court below shall give the respondent opportunity to file additional
written statement, if any.
THOMAS P.JOSEPH, JUDGE.
vsv