IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 32524 of 2006(V)
1. M.T.THOMAS, AGED 75 YEARS,
... Petitioner
Vs
1. KERALA STATE,
... Respondent
2. ASSISTANT ENGINEER,
For Petitioner :SRI.P.JACOB VARGHESE
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :18/01/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
W.P.(C)No.32524 OF 2006
............................................
DATED THIS THE 18th DAY OF JANUARY, 2007
JUDGMENT
Petitioner is the plaintiff in O.S.123 of 1988 on
the file of Munsiff Court, Ettumanoor. Respondents are
defendants. Suit was filed for declaration of title and
possession. The suit was originally decreed exparte.
The exparte decree was set aside by the District Court
in CMA 67 of 2003, when the order dismissing the
application filed under Rule 13 of Order IX was
challenged before the District Court. After the exparte
decree was set aside, plaintiff filed I.A.1348 of 2006,
an application under Order VI Rule 17 of Code of Civil
Procedure and I.A.1349 of 2006, an application to
implead third parties as additional defendants. Under
Ext.P9 order, the application for amendment was
dismissed. As per Ext.P10 order, the application to
implead third party was dismissed. This petition is
filed under Article 227 of Constitution of India
challenging Exts.P9 and P10 orders.
2. Learned counsel appearing for the petitioner
and learned Government Pleader were heard. The
WP(C)32524/2006 2
amendment sought for under I.A 1348 of 2006 is to
incorporate an additional plea in the plaint to the
effect that even if plaintiff has no title, he has
perfected title by adverse possession. Learned Munsiff,
under Ext.P9, dismissed the application holding that
after the exparte decree was set aside, as per the
order in CMA 67 of 2003, the case was posted for
several days and the application was filed belatedly
and the documents in the suits were destroyed earlier
and they are to be reconstructed and in such
circumstances, the amendment application cannot be
allowed. As rightly pointed out by learned counsel
appearing for the petitioner, by the amendment, the
nature or character of the suit is not changed. The
case of the petitioner is that he has title to the
property under the document set up in the plaint. There
is a discrepancy in the survey number. The amendment
sought for is only to the effect that even if
petitioner has no title as per the title deed, he has
perfected the title by adverse possession. By such
amendment, no prejudice will be caused to the
respondent. In such circumstances, Ext.P9 order is
WP(C)32524/2006 3
quashed. I.A.1348 of 2006 stands allowed and
petitioner is permitted to amend the plaint.
Respondents are entitled to file an additional written
statement. Though Ext.P10 order was challenged, I do
not find any infirmity warranting interference in that
order. The proposed defendants are not necessary
parties to the suit. Therefore the dismissal of the
application to implead them is neither illegal nor
improper. Petitioner is at liberty to institute a
separate suit as against the proposed defendants, if so
advised. The challenge against Ext.P9 order is
therefore rejected.
Writ petition is disposed accordingly.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-