High Court Kerala High Court

K.Soman Nair vs K.Syamalakumari Amma on 10 March, 2010

Kerala High Court
K.Soman Nair vs K.Syamalakumari Amma on 10 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 34822 of 2008(U)


1. K.SOMAN NAIR, S/O.A.KRISHNA PILLAI,
                      ...  Petitioner

                        Vs



1. K.SYAMALAKUMARI AMMA, AGED 48 YEARS,
                       ...       Respondent

2. SANIL.J.,AGED 36 YEARS,

                For Petitioner  :SRI.V.N.GOPALAKRISHNAN NAIR

                For Respondent  :SRI.RAM MOHAN.G.

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :10/03/2010

 O R D E R
               S.S.SATHEESACHANDRAN, J.
                    -------------------------------
               W.P.(C).NO.34822 OF 2008 ()
                  -----------------------------------
           Dated this the 10th day of March, 2010

                        J U D G M E N T

Petitioner is the plaintiff in O.S.No.583 of 2007 on the

file of the Munsiff (Rent Control) Court, Thiruvananthapuram.

Suit is one for declaration of prescriptive easement and for

injunction. Suit claim was resisted by the 2nd defendant, but,

practically supported by the 1st defendant. Plaint ‘A’ schedule

property, it is alleged, belong to the 1st defendant and ‘B’

schedule to the 2nd defendant. A pathway is running through

‘A’ and ‘B’ schedule properties and it leads to the burial place

of the parents of the plaintiff and 1st defendant was the case of

the plaintiff to claim prescriptive easement over a pathway

described as ‘C’ schedule as running through ‘A’ and ‘B’

schedule properties. After the written statement was filed by

the defendants, plaintiff moved an application for amending

the plaint to raise some more allegations and also include ‘D’

schedule to specify the burial place of his parents. That

application was objected to by the 2nd defendant. The learned

WPC.34822/08 2

Munsiff, after hearing both sides, dismissed the application

vide Ext.P5 order. Propriety and correctness of that order is

challenged in the writ petition invoking the supervisory

jurisdiction vested with this Court under Article 227 of the

Constitution of India.

2. I heard the counsel on both sides. Perusing the

impugned order with reference to the other exhibits produced

in the writ petition, I find that the dismissal of the application

for amendment in its entirety was not proper. Ext.P1 is the

copy of the plaint and Ext.P3 is the copy of the amendment

application. In Ext.P3 amendment application, plaintiff has

sought for correcting some mistakes which had occurred in

showing the relationship of the parties in the plaint. Even the

2nd defendant has not raised any objection in allowing that

part of the amendment sought for. Strangely enough, the

court below has not examined the merit of the amendment

application with reference to the reliefs canvassed in the suit

and also whether a declaration of prescriptive easement can

be claimed by any party without having any property closeby

WPC.34822/08 3

the property of the defendants over which such easement was

claimed as of right. In the present suit, the plaintiff has not

set up a right that he has any property beside ‘A’ and ‘B’

schedule. When that be so, the amendment sought for with

respect to ‘D’ schedule and the consequential allegations

sought to be introduced in the plaint do not arise for

consideration. So, that part of the order of the court below

declining the amendment is only to be approved but for

different reasons. But the amendment sought for with respect

to paragraphs 1 to 3 in Ext.P3, which relate to correction of

mistakes in the plaint already presented, deserve to be

allowed, and to that extent, the order of the court below shall

stand modified. Petitioner/plaintiff shall be permitted to

correct the plaint to the extent indicated above. Ext.P5 order

shall stand modified accordingly. Writ petition is accordingly

disposed.

S.S.SATHEESACHANDRAN
JUDGE

prp