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
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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.