High Court Kerala High Court

N.Padmavathy vs N.Ganeshan on 15 October, 2009

Kerala High Court
N.Padmavathy vs N.Ganeshan on 15 October, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 20374 of 2007(A)


1. N.PADMAVATHY, D/O. NARAYANAN,
                      ...  Petitioner

                        Vs



1. N.GANESHAN, S/O. NARAYANAN,
                       ...       Respondent

2. THE STATE OF KERALA, REPRESENTED BY

3. THE DIRECTOR,

4. CORPORATION OF THIRUVANANTHAPURAM,

5. THE MANAGING DIRECTOR,

                For Petitioner  :SRI.K.M.FIROZ

                For Respondent  :SMT.AMBIKA DEVI, SC, KWA

The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :15/10/2009

 O R D E R
                           P.Q.BARKATH ALI, J.
                       - - - - - - - - - - - - - - - - - - - - -
                         W.P.(C).No. 20374 OF 2007
                   - - - - - - - - - - - - - - - - - - - - - - - - - -
                   Dated this the 15th day of October, 2009

                                 JUDGMENT

Petitioner is the 5th defendant in O.S.No.476/2006 on the file of

Additional Munsiff Court, Thiruvananthapuram. Petitioner is the sister

of the first respondent/plaintiff. The plaintiff filed a suit before the

Munsiff Court seeking a permanent prohibitory injunction restraining

the petitioner herein from making any further construction over a 50

year old mud sewage pipe line, which is passing underneath the

property of the petitioner herein and also for a mandatory injunction

directing defendants 1 to 4 to demolish the plaint B schedule

construction and to declare the title of the plaintiff over the sewage

pipeline. First respondent is the petitioner in the suit. The second

respondent /first defendant is the state presented by the Chief Secretary.

The third respondent/second defendant is Director, Department of

Collegiate Education. The fourth respondent/third defendant is

Corporation of Thiruvananthapuram. The fifth respondent /fourth

defendant is Kerala Water Authority.

WPC.NO.20374/07 Page numbers

2. The plaintiff filed I.A.No.2721/2007 seeking amendment of

the plaint by adding a new prayer to pass a mandatory order of

injunction directing the fourth respondent to give necessary steps to

remove the D schedule block in the plaint C schedule pipe line. The

Munsiff allowed the petition by Ext.P7 order dated 13-04-2007. The

writ petitioner challenges the said order in this writ petition. According

to him, such a prayer will alter the entire character of the suit.

3. On going through the impugned order, it is seen that the

Munsiff has allowed the application on the ground that the amendment

sought for will not alter the basic character of the suit . I am unable to

agree. The suit was for a declaration of title of the plaintiff over the

plaint schedule property and for a permanent prohibitory injunction

restraining the petitioner herein from making any further construction

over a 50 year old mud sewage pipe line, which is passing underneath

the property of the petitioner herein and also for a mandatory

injunction directing the defendants 1 to 4 to demolish the plaint B

schedule construction. The amendment sought for is to pass a

mandatory order of injunction directing the fourth respondent to give

WPC.NO.20374/07 Page numbers

necessary steps to remove the D schedule block in the plaint C schedule

line which is entirely a new prayer and will alter the nature of the suit.

It will have a different cause of action in the suit.

The 4th respondent water authority has filed a counter affidavit

to the effect that the line in question is a very old mud pipe, that even if

block occurs, it cannot be rectified and it has suggested for having an

alternate sewerage line through the pathway to the petitioner’s house.

The 1st respondent/plaintiff filed I.A.No.7704 of 2005 before the trial

court claiming the very same relief which the learned Munisff had

refused to grant by order dated June 20, 2006. Challenging the said

order, the 1st respondent/plaintiff has filed W.P.(C) No.22882 of 2006

and this Court by judgment dated October 9, 2006 dismissed the writ

petition. Under these circumstances, I feel that the the learned Munsiff

is not justified in allowing amendment application I.A. NO.2721 of

2007.

In the result, the writ petition is allowed, the impugned order is

set aside and the I.A.No.2721 of 2007 is dismissed. The parties shall

bear their own costs. The 1st respondent/plaintiff is entitled to file a

WPC.NO.20374/07 Page numbers

separate suit, if he chooses for the relief claimed in the above

amendment application.

P.Q.BARKATH ALI
JUDGE

sv.

WPC.NO.20374/07    Page numbers