IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31441 of 2009(O)
1. KESAVAN SUBRAHMANYAN,
... Petitioner
2. ARUNDHATHI VASANTHI,
3. ARUNDHATHI SARASWATHY,
4. ARUNDHATHI LALITHA,
5. KESAVAN KARUNAKARAN,
6. ARUNDHATHI AMBUJAKSHY,
7. ARUNDHATHI SYAMALA, KESAVA NILAYAM,
Vs
1. S.MADHUKUMAR, AMRITHALAYAM,
... Respondent
2. REMADEVI, AMRITHALAYAM,
For Petitioner :SRI.R.S.KALKURA
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :05/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.31441 OF 2009
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Dated this the 5th day of November 2009
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JUDGMENT
Plaintiffs in O.S No.145 of 2008 on the
file of Additional Munsiff Court-I, Neyyattinkara
have filed this writ petition challenging the order
passed by the learned Additional Munsiff to the
extent, the amendment application moved by them was
declined. The above suit was one for permanent
prohibitory injunction. The respondents/defendants
resisted the suit claim disputing the title of the
plaintiffs over ‘D’ schedule property in respect of
which the decree of injunction was sought for.
After the suit came up for trial,
petitioners/plaintiffs moved an application for
amendment to seek additional relief of declaration
of their title over ‘D’ schedule property and also
right of prescriptive easement over a pathway
W.P.(C).No.31441 OF 2009 Page numbers
running through the property of the defendants
seeking inclusion of that pathway as ‘C’ schedule in
the plaint. The application for amendment was
opposed to by the respondents/defendants. The
learned Additional Munisiff allowed the application
in part permitting the plaintiffs to amend the plaint
for seeking the additional relief of declaration of
their title over ‘E’ schedule property with
consequential amendments to the plaint. The
application in respect of the declaration of right of
prescriptive easement and the consequential amendment
sought thereof in the plaint, was disallowed. Ext.P8
is the order passed by the learned Munsiff.
Propriety and correctness of Ext.P8 order to the
extent it was disallowed 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 learned counsel for the
petitioners/plaintiffs. Having regard to the
W.P.(C).No.31441 OF 2009 Page numbers
submissions made and taking note of the facts and
circumstances presented with reference to Ext.P8
order and also other exhibits tendered in the writ
petition, I find no notice to the respondents is
necessary and hence it is dispensed with. At the
time of hearing, the learned counsel for the
petitioners submitted that the trial of the suit has
not commenced and no prejudice will be caused to the
defendants by allowing the proposed amendment sought
for by the petitioners and that the proposed
amendment is essential to avoid multiplicity of
proceedings between the parties. Cause of action for
seeking the amendment relating to the declaration of
right of prescriptive easement over the pathway
running through the property of the defendants arose
subsequent to the institution of the present suit and
in that contextual background to avoid multiplicity
of proceedings the relief thereof was canvassed by
way of amendment in the present suit, is the
submission of the counsel. Perusing Ext.P8 order
passed by the learned Munsiff I find that the learned
W.P.(C).No.31441 OF 2009 Page numbers
Munsiff was correct in holding that the adjudication
of the dispute canvassed relating to the right of
prescriptive easement over a pathway allegedly
running through the property of defendants in the
present suit, by way amending the plaint, cannot be
granted. Since the cause of action for canvassing
the relief claimed under that amendment can be
agitated by the plaintiffs by a separate suit it is
open to the plaintiffs to do so. In the pending suit
if the proposed amendment is allowed at this stage,
naturally it will cause hardship and injury to the
defendants. So much so, reserving the right of the
respondents to seek appropriate relief in respect of
their claim of right of prescriptive easement over
the alleged way running through the property of the
defendants the writ petition is closed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv