IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37703 of 2009(O)
1. OUSEPH CHACKO, PONTHALLOOR PARAMBIL,
... Petitioner
Vs
1. JOSE PHILIP @ JOSEPH THAYYIL,
... Respondent
2. PHILIP LUKA, THAYYIL ONASSERIL,
3. CHACKO PHILOMINA,
4. CHACKO ANNA, D/O. OUSEPH CHACKO,
For Petitioner :SRI.P.R.VENKETESH
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :04/01/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.37703 of 2009 - O
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Dated this the 4th day of January, 2010
J U D G M E N T
Writ petition is filed seeking the following reliefs:
“To issue a writ or order setting aside Ext.P6 and
dismissing Ext.P3.”
2. Petitioner is the first defendant in O.S.No.65 of 1978
on the file of the Munsiff Court, Ettumanoor. Respondents 1 and
2 are the additional second and third plaintiffs in the above suit
which is one for declaration of title and other reliefs. Previously,
the suit had been decreed after full fledged trial negativing the
contentions raised by the defendants. In the appeal the dismissal
of the suit was reversed directing reconsideration of the matter.
Some observations were also made in the judgment rendered by
the appellate court that the plaintiffs can move for amendment
for recovery of possession as well. After remand, the plaintiffs
applied for amendment to have additional relief of recovery of
possession and also correcting the boundary descriptions of the
plaint property. Though objections to that application were filed
by the defendant the learned Munsiff passed Ext.P6 order
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allowing the amendment application expressing a view that no
serious objection was raised to the amendment is the grievance
espoused in the writ petition for the reliefs sought for invoking
the supervisory jurisdiction vested with this Court under Article
227 of the Constitution of India.
3. I heard the learned counsel for the petitioner.
4. Ext.P6 is the order passed by the learned Munsiff.
Ext.P6 reads thus:
“No serious objections. Hence allowed.”
Suit is seen instituted as early in 1978 and the amendment
application was moved by the plaintiff in 2009, that too based on
some observations stated to have been made in the judgment
rendered by the appellate court in 1991. Ext.P4 is the copy of
the objections purported to have been filed by the petitioner/first
defendant to the amendment application. Objections are seen
filed on 21.11.2009, the date on which Ext.P6 order was passed
by the learned Munsiff. Ext.P5 is the copy of the objections filed
by the other set of defendants. It is not clear whether these
objections were before the court when the learned Munsiff
W.P.(C).No.37703 of 2009 – O
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considered Ext.P3 application moved by the plaintiffs. Even if the
objections were not before the court a reasoned order whether
the amendment is allowable or not is expected from the court
especially when such an amendment has been sought for long
after the judgment rendered by the appellate court. I do not
want to express any opinion on the merit or correctness of Ext.P6
order though I find that learned Munsiff was not justified in
disposing the application without stating the reasons for allowing
the amendment applied for. It is open to the petitioner/first
defendant to move a review application against Ext.P6 order in
case his objections were canvassed but not considered while
passing of Ext.P6 order passed by the learned Munsiff. If any
such review petition is filed within three weeks from the date of
receipt/production of a copy of this judgment, and, if the learned
Munsiff is satisfied that Ext.P6 order has been passed despite
raising of the objections canvassed under Ext.P4 by the first
defendant, review petition shall be considered and disposed on
merits in accordance with law.
W.P.(C).No.37703 of 2009 – O
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Subject to the observations made above and reserving the
right of the petitioner to move a review petition within the time
fixed above, the writ petition is disposed. Hand over a copy of
the judgment to the learned counsel for the petitioner and send a
copy to the court concerned forthwith.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-