P.K.Gopalakrishna Panicker vs P.T.Samuel on 16 July, 2007

Kerala High Court
P.K.Gopalakrishna Panicker vs P.T.Samuel on 16 July, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 18448 of 2006(U)


1. P.K.GOPALAKRISHNA PANICKER,
                      ...  Petitioner
2. P.RAJENDRAN, PADINJATHETHILAYAPUTHEN

                        Vs



1. P.T.SAMUEL, POOVATHUMMOTTIL HOUSE,
                       ...       Respondent

2. SAMSON THOMAS, POOVATHUMMOTTIL HOUSE,

3. BLESSON SAMUEL, POOVATHUMMOTTIL HOUSE,

                For Petitioner  :SRI.K.JAGADEESCHANDRAN NAIR

                For Respondent  :SRI.ALEXANDER THOMAS

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :16/07/2007

 O R D E R
                           PIUS C. KURIAKOSE, J.
                ..........................................................
                          W.P.(C)No.18448 OF 2006
                ...........................................................
                     DATED THIS THE 16th JULY, 2007

                                 J U D G M E N T

The plaintiffs in an original suit filed for injunction and for

ancillary reliefs are aggrieved by Ext.P3 order passed by the learned

Munsiff dismissing their application for amendment of the plaint so as

to correct what, according to them, was an inadvertant clerical error in

the description of plaint schedule item No.3. Item No.3 in the plaint is

described as a 6 feet wide strip of land situated on the southern side of

plaint item No.2. In fact, the description is in Malayalam and the

same is as follows:- ”

But, in the body of the plaint it has been stated that the above strip of

land forms part of item No.2:- The

amendment sought for was that the words ”

in the description of item 3 shall be corrected as ”

In other words, the amendment was to make the property-schedule

description conform to the averments in the body of the plaint.

Upholding the objections raised by the respondents, the learned

Munsiff followed the judgment of the Supreme Court in B.K.N.Pillai v.

P.Pillai (2000 (1) KLT 274) and dismissed the application holding that

the mistake on the part of the master of the suit cannot be allowed to

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be rectified since the same will cause prejudice to the defendants.

2. I have heard the submissions of Mr.K.Jagadeesachandran

Nair, learned counsel for the petitioners and Mr.Alexander Thomas,

learned counsel for the respondents.

3. Mr.Alexander Thomas would make strenuous and sincere

submissions in his endeavour to sustain the impugned order. The

learned counsel relied on the judgment of this Court in Kalpakamani

& Others v. Shajathan & Another (2005 (3) KLJ 305) so as to

remind me of the limitations of this Court’s supervisory jurisdiction

under Article 227. Counsel also relied on the judgment of the Delhi

High Court in Faqir Chand v. Lila Ram (AIR 1994 Delhi 161) and

that of the Supreme Court in Balakrishnan v. Shree D.M.Sansthan

(AIR 1959 SC 798) to advance an argument that the amendment will

render the acts which the respondents have already performed, i.e.,

construction of building upon the property which, according to the

admissions in the plaint, belonged to the respondents, illegal. The

prejudice to be caused to the respondents will be real according to the

learned counsel since it is likely that the plaintiffs may come forward

with an application for mandatory injunction for demolishing portions

of the constructions already put up by the respondents lawfully.

WP(C)N0.18448/06
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4. Sri.Jagadeesachandran Nair would resist the submissions of

Sri.Alexander Thomas. The learned counsel would rely on the

judgment of the Divison Bench in Jancy Chandy v. Jose Puthenkala

(2006 (4) KLT 116) to contend that the Constitutional jurisdictions of

this Court under Articles 226 and 227 are not to be cribbed, cabined or

confined by technical pleas. This Court has power on considerations

of justice under Articles 226 and 227 to issue any order, submitted the

learned counsel. Counsel also relied on the judgment of the Supreme

Court in Titaghur Paper Mills Co. v. Their Workmen (AIR 1959 SC

1095), to argue that when conclusions are drawn by lower courts

without adverting to the materials available on record, the same will

amount to error of law which will have to be corrected by the High

Court under the supervisory jurisdiction. For the same proposition,

the learned counsel relied on the judgment of the Supreme Court in

Sunila Jain v. Union of India [(2006) 3 SCC 321].

5. Having considered the ratio emerging from the various

decisions cited at the Bar and having kept in mind the principles to

govern exercise of power under Order VI Rule 17, I am of the view

that the learned Munsiff could have allowed the application after

ensuring that his order does not cause any prejudice to the

WP(C)N0.18448/06
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respondents. Obviously, it was a clerical error which was sought to be

corrected by the amendment application and should ordinarily have

been allowed. But, in the present case, since the application for

amendment comes after the completion of the construction of the

building in question at a time when the unamended suit was in

operation, it is likely to cause prejudice to the defendants who

constructed the building. It is to be ensured that the amendment does

not result in a situation of the defendants being compelled to demolish

the building on the reason that the same is constructed in violation of

the injunction order.

6. Under the above circumstances, setting aside the impugned

order I allow the application for amendment filed by the petitioners,

but only prospectively, i.e., with effect from 9.8.2001, the date of the

amendment application.

The Writ Petition is allowed as above. No costs.

(PIUS C.KURIAKOSE, JUDGE)
tgl

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