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Mary James vs Saraswathy Amma on 6 April, 2010

Kerala High Court
Mary James vs Saraswathy Amma on 6 April, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 29695 of 2009(O)


1. MARY JAMES, AGED 54, W/O.JAMES,
                      ...  Petitioner

                        Vs



1. SARASWATHY AMMA, AGED 61,
                       ...       Respondent

2. K.S.BABU, AGED 46,

3. K.S.MANOJ, AGED 31,

4. SHIJO T.JAMES, AGED 29, S/O.JAMES,

                For Petitioner  :SRI.P.N.RAMAKRISHNAN NAIR

                For Respondent  :SRI.ALEXANDER JOSEPH

The Hon'ble MR. Justice P.BHAVADASAN

 Dated :06/04/2010

 O R D E R
                        P. BHAVADASAN, J.
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                   W.P.(C). No. 29695 of 2009
            - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
            Dated this the 6th day of April, 2010.

                               JUDGMENT

Petitioner instituted O.S. 80 of 2008 before the

Munsiff’s Court, Muvattupuzha, which was a suit for

injunction against the defendants from filling up a thodu,

which is running through the property owned by the

defendants, from obstructing the flow of water through

it or diverting its direction or from doing any act

detrimental to the cultivation and enjoyment of plaint A

schedule property.

2. First plaintiff is the absolute owner of plaint

A schedule property and the defendants owns plaint B

schedule lying on the south of plaint A schedule

property. A thodu starts from the properties lying on the

south eastern side of the plaint A and B schedule

properties and flows towards north west and then

towards north through the culvert of the river road and

reaches plaint B schedule property. It then goes towards

WPC. 29695/2009. 2

north through plaint A and B schedule properties through the

western side and reaches Kothamangalam river. According

to the plaintiffs, the thodu has a depth of 4 feet and width of

3 feet. That thodu was in existence for a considerably long

period and water collected in the plaint schedule properties

and the properties on the south eastern side of the plaint A

and B schedule properties and the properties during rainy

season are drained out from the said thodu and thus

prevented the flooding in the fields and agricultural lands. It

is contended that the plaintiffs acquired prescriptive right of

easement over C schedule thodu. The suit was laid when

the defendants tried to reclaim plaint B schedule property.

The defendants filled up a portion of plaint C schedule thodu

and attempted to divert the flow of water from the culvert

towards north.

3. The defendants resisted the suit and contended

that there is no thodu described as plaint C schedule and the

plaintiffs had no right to use any portion of plaint B schedule

for any purpose.

WPC. 29695/2009. 3

4. The suit was posted for trial on 6.8.2009.

According to the plaintiffs, while preparations were being

done to face trial, it was found that some mistakes had crept

in the boundary descriptions of the plaint C schedule

property. In the plaint, the southern boundary was

mistakenly shown as Panchayat road and the western

boundary was shown as Kocherikudy Babu’s property. The

commission report revealed that a narrow strip of land was

left on the southern side of the thodu and the northern side

of the southern boundary of plaint B schedule property and

also a narrow strip was left on the western side of the thodu

slightly away from the eastern boundary of plaint B schedule

property. In order to bring the boundary description of the

plaint schedule property in tune with the commissioner’s

plan, I.A. 2125 of 2009 was filed by the plaintiffs seeking

amendment of the plaint incorporating the above aspects.

Ext.P4 is the copy of the said application. The court below

dismissed the petition by Ext.P5 order.

WPC. 29695/2009. 4

5. According to the petitioner, there was an

interim injunction in his favour. On 11.7.2009 the

defendants in violation of the order of injunction put up a

new thodu through the eastern side of the plaint B schedule

property and diverted the flow of water to plaint A schedule

property so as to destroy the cultivation therein. Hence the

plaintiff filed I.A. 2230 of 2009 and I.A. 2229 of 2009 for

appointment of Advocate Commissioner to report about the

violation. The report and sketch of the Commissioner is

produced as Exts.P6 and P6(a). It became necessary for the

plaintiff to incorporate new relief by way of amendment of

the plaint as a result of the action of the defendants in

violation of the order of injunction. Incorporating the

necessary amendments, they filed I.A. 2263 of 2009 seeking

amendment of the plaint. That was also dismissed by Ext.P8

order. Exts.P5 and P8 are under challenge.

6. Learned counsel appearing for the petitioner

pointed out that the grounds relied on by the petitioner to

dismiss the amendment applications are not justifiable. As

WPC. 29695/2009. 5

regards Ext.P5, it is pointed out that one fails to understand

how the character of the suit is changed. It may be true that

there is a change in the description of the boundary of C

schedule property. But that will not change the character

and nature of the suit and that remains the same. At the

time of filing the suit, the plaintiffs were not aware of the

narrow strip of land was left on the south and west of plaint

C schedule thodu. The thodu was running along the

southern and western sides of plaint B schedule properties.

When they realised the mistake they sought amendment

pointing out the proper boundaries.

7. Learned counsel appearing for the respondents

pointed out that the petitioner, who sought amendment

regarding the boundaries of C schedule is not so innocent

as he tries to be. If the amendment is allowed, that would

mean that the plaintiff could locate the thodu said to be

running through the property anywhere in the western side

of plaint B schedule property. That cannot be permitted.

WPC. 29695/2009. 6

8. It was also pointed out that Ext.P5 order was

passed on 10.8.2009 and it is only now that the petitioner

has sought to challenge the same. The belated attempt of

challenging Ext.P5 shows that the petitioner had accepted

the order initially and it is as a result of an after thought the

present challenge has been made.

9. Though the argument of the learned counsel

for the respondents look very attractive, on a closer scrutiny

it can be found to be without any basis. One fails to

understand how the character of the suit is changed as

found by the court below. All that is sought to be amended

is the boundary of plaint C schedule property in the light of

the Commission report. The position of the thodu as alleged

in the plaint remains the same except that it is not on the

southern and western boundary, but little inside the property

leaving a narrow strip of land on the west and south.

10. Learned counsel appearing for the

respondents pointed out that the commission report was

filed on 22.5.2008 and Ext.P4 application for amendment

WPC. 29695/2009. 7

was filed only on 4.8.2009. There is no justification for the

belated prayer for amendment. Learned counsel for the

petitioner pointed out that the reason has been mentioned

in the petitioner and there is no reason to disbelieve the said

facts.

11. May be that there is some delay in filing the

amendment application, namely, Ext.P4, But one must

notice that the Commission sketch was there and if in fact

the decree was to be passed in favour of the plaintiff, the

sketch would be made a part of the decree. It is not as if the

parties were in dark regarding the location of C schedule

thodu,even initially, the commission report only showed that

a narrow strip of land is left on the southern and western

side of the thodu and in order to avoid a future controversy,

the plaintiff sought amendment of the plaint, though it could

have been done earlier. But they have also given reasons as

to why delay occurred. One fails to understand what

prejudice could be caused to the respondent by allowing the

WPC. 29695/2009. 8

amendment. At any rate, the reason given by the court

below to decline the amendment cannot be sustained in law.

12. It is true that the amendment application was

filed on the date of trial. But it could not be said that the

defendants were taken by surprise that they were aware of

the true state of affairs as the Commission report had

already been filed. It is also pointed out that the

amendment sought for by Ext.P4 application was in terms of

the Commission report. Therefore it could not also be said

that the amendment would take them by surprise.

13. As regards the second amendment

application, Ext.P7, that was based on subsequent events. it

is pointed out by the learned counsel for the petitioner that

there was an injunction against the respondents. It was

violating the order of injunction that they had tried to

construct a new thodu on the eastern side of plaint B

schedule property. It was to avoid a contention ultimately if

the plaintiff succeeds that there was no relief as regards the

new thodu that the amendment was sought for to

WPC. 29695/2009. 9

incorporate necessary reliefs in that regard also. There was

no justification on the part of the lower court in not allowing

the amendment applications. Learned counsel for the

petitioner pointed out that the reason is not acceptable at

all.

14. Learned counsel appearing for the

respondents on the other hand pointed out that even

assuming the allegations to be true, that creates a new

cause of action and therefore the plaintiff will have to resort

to another suit. It is not in respect of C schedule thodu that

anything had been done by the defendants and the

allegation is that he had cut open a new thodu in his own

property through the eastern side. That has nothing to do

with the subject matter of the present suit. So accordingly,

it is contended that it is as separate cause of auction and a

separate will have to be filed.

15. Though the argument may look attractive, on

a close scrutiny it can be found to be without basis. One

may have to look at the plaint, and the relief B sought for in

WPC. 29695/2009. 10

the plaint. The injunction sought for is that the defendants

shall not commit any act which would adversely affect the

agricultural operation in plaint A schedule property. The

allegation made now in the amendment application by the

plaintiff is that by cutting open a new thodu on the eastern

side, water will flow into plaint A schedule property and

destroy their crops. As to the exact effect, one has to note

the relief in that respect in the plaint. In the plaint, there is

a prayer to injunct the defendants from doing any acts

detrimental to the cultivation and enjoyment of the plaint A

schedule property. Therefore the contention that a separate

suit will have to be filed cannot be accepted. Even

otherwise, it is an act done during the pendency of the suit

and, if it adversely affect the parties and they can seek

appropriate reliefs in the same suit itself.

16. The reasons given by the court below to

dismiss the applications are unsustainable in law. According

to the lower court they ought to have been more diligent,

and their filing of the application on the date of trial cannot

WPC. 29695/2009. 11

be countenanced. It is pointed out that the incident is

alleged to have taken place on 11.7.2009 and therefore if

the plaintiffs were diligent, they would have filed it earlier.

17. The commission report is dated 19.8.2009.

The amendment application was moved on 26.8.2009. That

means soon after the commission report was filed, the

application for amendment was also filed. It could not

therefore be said that the plaintiff was not diligent in this

regard.

18. None of the grounds relied on by the court

below to decline the amendment as per Exts.P4 and P7

petitions are legally acceptable.

19. For the proper adjudication of the issues

involved in the suit, these amendments are necessary. Of

course, proviso to Order VI Rule 17 of CPC provides that

once the trial commenced, unless there are compelling

reasons, amendment shall not be allowed. Viewed from that

angle, Ext.P4 is highly belated. But one has to notice that

the amendments are required for a proper adjudication of

WPC. 29695/2009. 12

the issues involved in the suit. Even assuming that the

amendment sought for is belated, it ought to be allowed so

as to avoid multiplicity of suits. Viewed from this angle, it

has to be said that both the amendment applications ought

to have been allowed and at any rate any delay caused to

the respondents can be compensated by awarding costs.

20. Going by the reliefs sought for in the plaint

also the amendment sought for are quite appropriate.

In the result, this writ petition is allowed, Exts. P5

and P8 are set aside and the amendment applications are

allowed subject to the petitioner paying a sum of Rs.1500/-

within two weeks from the date of this judgment.

P. BHAVADASAN,
JUDGE

sb.

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