IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5581 of 2009(O)
1. RADHAKRISHNAN, S/O.SREEDHARAN PILLAI,
... Petitioner
2. SISUPALAN, AGED 41,RESIDING AT KUNNUVILA
Vs
1. BALACHANDRAN NAIR,S/O.KRISHNA PILLAI,
... Respondent
2. K.SUDARSANAN NAIR,S/O.KRISHNA PILLAI,
For Petitioner :SRI.J.S.AJITHKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :19/02/2009
O R D E R
K.T.SANKARAN, J.
---------------------------------------------
W.P.(C).No.5581 of 2009
---------------------------------------------
Dated this the 19th day of February, 2009
JUDGMENT
The petitioners, who are defendants in O.S.No.144/07 on
the file of the court of the Munsiff of Varkala, challenge the
order dated 5th January 2009 in I.A.No. 1067/08 by which the
court below allowed the application for amendment of the plaint
filed by the respondents/plaintiffs.
2. The suit was filed by the respondents for a perpetual
prohibitory injunction restraining the defendant Nos.1 and 2
from making unlawful entry into the plaint schedule property,
from constructing road or pathway through it or causing to do
any act which will cause obstruction to the peaceful
possession and enjoyment of the plaintiffs and the third
defendant over the property. The plaintiffs filed I.A.No.1067/08
for amendment of the plaint to incorporate a prayer for
mandatory injunction directing the defendants to restore the lie
of the plaint schedule property to its original position. In the
affidavit in support of the application for amendment, the second
WPC No.5581 /2009 2
plaintiff stated that an order of temporary injunction was
granted against the defendants and the defendants encroached
upon the plaint schedule property and cut open a road through
the property in violation of the order of interim injunction. In
the application for amendment, the plaintiffs stated that they are
relinquishing their right to realise damages from the defendants
for the sake of shortening the contentions in the litigation.
3. Defendant Nos.1 and 2 opposed the application for
amendment of plaint. They contended that the averments made
in the application are not true. They stated that they do not have
any property in the neighbourhood. The second defendant is
residing 12 kms. away from the property. They never trespassed
upon the plaint schedule property. They also raised a contention
that a pathway was in existence through the plaint schedule
property even earlier. No change was made to the pathway. The
widening of the pathway was made with the co-operation of the
inhabitants of the colony. No act was done by the defendants in
violation of the order of temporary injunction. The court below,
by the order impugned, allowed the application for amendment.
4. The learned counsel for the petitioners submitted that
WPC No.5581 /2009 3
the court below was not justified in allowing the amendment, in
the facts and circumstances of the case. He submitted that the
Commissioner’s report would indicate that the averments made
in the affidavit in support of the application for amendment of
plaint are incorrect and untrue and therefore, the court below
should have dismissed the application. It is well settled that
truth or falsity of the allegations made in the application for
amendment is not a matter to be decided by the court at the time
of deciding the question whether the amendment of plaint should
be allowed. The suit was originally filed for permanent
prohibitory injunction. The case of the plaintiffs is that after the
filing of the suit, certain offending acts were done by the
defendants 1 and 2. The reliefs sought for by way of amendment
is for mandatory injunction to undo the offending acts.
5. The question whether the plaintiffs are entitled to the
reliefs as prayed for or whether the case put forward by them is
true or not, are all matters to be considered at the time of trial.
The court below need not consider the merits of the case at the
time of considering the application for amendment. I do not
think that the court below has committed any illegality or
WPC No.5581 /2009 4
irregularity in allowing the application. There is no error of
jurisdiction, either.
The Writ Petition lacks merits and it is accordingly
dismissed.
K.T.SANKARAN,
JUDGE
csl