IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 33769 of 2005(T)
1. ERANJIKKAL MUHAMMED HAJI,
... Petitioner
Vs
1. ABDULLA, S/O. LATE CHENARI CHAKKI
... Respondent
For Petitioner :SRI.R.RAJESH KORMATH
For Respondent :SRI.M.GOPIKRISHNAN NAMBIAR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :20/08/2007
O R D E R
PIUS C. KURIAKOSE,J.
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W.P.(C) No.33769 of 2005
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Dated: 20th August, 2007
JUDGMENT
Ext.P7 order by which the application filed by the defendants for
amendment of the written statement was dismissed is under
challenge in this Writ Petition under Article 227 of the Constitution.
The suit was one for prohibitory injunction restraining the defendants
from obstructing the B Schedule pathway. The bone of contention
between the parties is the right of way over plaint B schedule
pathway. According to the petitioner, after the petitioner and another
witness was examined, it was noticed that mistakenly the right over
plaint B schedule pathway is described as ‘easement by prescription’
in the written statement. The petitioner therefore filed I.A.No.1507 of
2005 to amend the written statement. The amendment sought for
was to substitute the claim of easement by prescription by a claim of
right of public way. The learned Munsiff has assigned two reasons for
dismissing the application. The first one is that the trial of the suit has
already commenced and no reasons are stated by the petitioner as to
why the amendment could not be applied for earlier. The above
reason cannot hold good in view of the principles laid down by me in
Neelakandan Nair v. Parameswara Kurup (2003(2) KLT 943)
W.P.C.No.33769/05 – 2 –
since it is clear that it is not the amended C.P.C. which governs the
pleadings in this case. But the other reason stated by the learned
Munsiff in my opinion is good. According to the petitioner, it was on
account of the mistake committed by the clerk of the counsel that the
plea of easement by prescription was originally taken. The learned
Munsiff rightly found that in view of the specific pleadings taken in the
original written statement regarding the nature of the right of way
claimed as one for way easement by prescription, the case that the
original pleadings are the result of mistake committed by the clerk
cannot be accepted. There is yet another reason also as to why the
impugned order is supportable. P.W.1 the principal witness and the
Commissioner, P.W.2 had already been examined. The evidence
adduced by them perhaps is of such a nature as to demolish the
petitioner’s case of easement by prescription. The petitioner would
have realised that substantiating the case of easement by
prescription will be almost an impossible exercise. The idea in filing
the amendment application seems to be to have the pleadings
amended so that the effect of evidence already adduced in the suit
and the presently pleaded case can be got over. I do not think that
W.P.C.No.33769/05 – 3 –
amendment of pleadings can be allowed to such an extent since the
same will amount to causing irreparable prejudice to the adversary in
the litigation.
The challenge against Ext.P7 fails. The Writ Petition will stand
dismissed. Since the suit was already published in the special list, the
learned Munsiff is directed to re-list the suit for trial and dispose of
the same in accordance with law.
srd PIUS C.KURIAKOSE, JUDGE