IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25785 of 2010(O)
1. RAKESH G NAIR
... Petitioner
Vs
1. KRISHNAN NAIR
... Respondent
2. RADHAKRISHNAN, S/O.KRISHNAN NAIR
3. MOHANACHANDRAN NAIR
4. RAHUL, S/O.KRISHNAN NAIR
5. AJAYADAS
6. THE STATE OF KERALA
7. PRAVEEDN, PRAVEEN BHAVAN,
For Petitioner :SRI.C.S.MANILAL
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :16/08/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) NO.25785 of 2010
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Dated this the 16th day of August, 2010
J U D G M E N T
Petitioner sued respondents, initially for a decree for
prohibitory injunction to restrain the latter from trespassing into
the suit property or obstructing his workers engaged in work in
the said property. Respondents claimed that suit property is
puramboke land. In view of that contention plaint was amended
to incorporate a prayer for declaration of title over the suit
property. While so petitioner transferred 3.50 cents from the suit
property to his brother. The brother was impleaded as additional
plaintiff No.2 as per order dated 17.07.2010. Thereafter petitioner
filed I.A. No.5056 of 2010 (in O.S. No. 1738 of 2008 of the court of
learned additional Munsiff-II, Thiruvananthapuram) for amendment
of the plaint, according to the petitioner consequent to the
impleadment. The amendment sought for is to bifurcate the suit
property into A and B schedules consequent to the sale of 3.50
cents in favour of additional plaintiff No.2 and also to make
appropriate amendments in the body of the plaint. That
application was disallowed by the learned Munsiff as per Ext.P5,
W.P(C) No.25785 of 2010
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order which is under challenge. Learned counsel contends that
dismissal of Ext.P3, application is not proper and unless the plaint
is amended it might create inconvenience and difficulties in the
course of execution if the suit is decreed in favour of petitioner
and additional plaintiff No.2.
2. It is not disputed that transfer of 3.50 cents out of the
suit property in favour of brother of petitioner was pending suit.
Even without impleadment of the transferee it was competent for
petitioner to proceed with the suit. Court below has permitted the
transferee to come on record as additional plaintiff. Question is
whether amendment as prayed for is required. There is no case
that there is any dispute between petitioner and additional
plaintiff No.2 as regards respective portions of the property
allegedly belonging to them. As such a bifurcation of suit
property between petitioner and additional plaintiff No.2 is not
necessary in this suit. There is nothing wrong in petitioner and
additional plaintiff No.2 seeking declaration of title in respect of
the entire suit property in their favour. Even without an
amendment it is open to the learned Munsiff to take into account
subsequent events (transfer of 3.50 cents in favour of additional
plaintiff No.2) and mould the relief of declaration accordingly. It
W.P(C) No.25785 of 2010
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is not required that amendment of the nature sought for is to be
made in the plaint since as I stated there is no inter se dispute
between petitioner and additional plaintiff No.2 and at any rate
required to be resolved in the present suit. In that view of the
matter I am not inclined to think that ultimate order dismissing
Ext.P3 suffers from any illegality or irregularity.
Resultantly Writ Petition is disposed of with the
observation I have made as to the power of court to mould relief
in favour of petitioner and additional plaintiff No.2 taking into
account sale of a portion of the suit property in favour of the
latter in case petitioner and additional plaintiff No.2 are found
entitled to the reliefs prayed for.
THOMAS P. JOSEPH, JUDGE.
vsv