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.
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W.P.(C)No.18448 OF 2006
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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.
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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
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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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