IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34493 of 2009(O)
1. RAMAKRISHNAN, S/O. VELAYUDHAN, AGED
... Petitioner
Vs
1. VISWNATHAN, S/O. VELUNNI, AGED 68 YEARS,
... Respondent
2. JANUKUTTY, W/O. CHANDRAN,
3. SAROJINI, W/O. AYYAPPAN
4. RAJI, W/O. CHELLAPPAN, AG4ED 45
5. REMADEVI, W/O. SURESH,
For Petitioner :SRI.A.CHERIAN
For Respondent :SRI.JOHN K.GEORGE
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :22/01/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.34493 OF 2009
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Dated this the 22nd day of January 2010
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JUDGMENT
Petitioner is the plaintiff in O.S No.383 of 2008 on
the file of Munsiff Court, Perumbavoor. Suit is one for
declaration of right of easement over a pathway and for
injunction. The pathway is described as ‘B’ schedule, having
a width of three meters and length of 25 meters. Suit claim
was resisted by the respondents/defendants filing a written
statement in which the description of the plaint ‘B’ schedule
pathway was disputed. Among other contentions, the
respondents contended that the pathway is having only a
width of 7 to 7.5 feet. However, later, respondent moved an
application for correction of the width of ‘B’ schedule
pathway by deleting the width stated earlier incorporating a
statement that the pathway is having only 5 to 5.2 feet.
That amendment was asked for, according to the defendant,
on the basis of the actual determination of the width in the
local inspection conducted by the advocate commissioner on
the basis of his commission application. Though the
W.P.(C).No.34493 OF 2009 Page numbers
amendment was objected to by the plaintiffs, the learned
Munsiff allowed that amendment vide Ext.P8 order.
Propriety and correctness of that order is challenged in the
writ petition invoking the supervisory jurisdiction vested with
this court under Article 227 of the Constitution of India.
2. I heard the learned counsel for the petitioner. What
was specifically admitted by the defendant as the width of
the ‘B’ schedule pathway in his written statement, by way of
amendment, was sought to be retracted and that was
allowed by the learned Munsiff vide Ext.P8 order without
considering the legal principles applicable is the submission
of the learned counsel for the petitioners/plaintiffs. What is
sought for is only a correction of the width which was
wrongly stated in the written statement filed earlier and the
correction so sought for is supported by the subsequent
report of the advocate commissioner is the submission of
the learned counsel for the respondent. Perusing Ext.P8
order with reference to the submissions made by the
counsel and also the facts and circumstances presented, I
find, the court below has not considered the merit of the
W.P.(C).No.34493 OF 2009 Page numbers
amendment sought for in accordance with the principles
applicable in considering whether such an amendment is
permissible or not. Order 8 Rule 5 of the Code of Civil
Procedure specifically states that whatever is not specifically
denied by the defendant in his written statement shall be
deemed to have been admitted. So much so, the very vital
question involved in the present case related to the width of
the pathway when its existence was not disputed. True,
claim of right of easement canvassed by the plaintiffs is
disputed by the defendants. But even an incohate right
which has not matured into a prescriptive right can be set
forth to sustain the relief of injunction is not open to doubt.
But where a declaration of easement is claimed, necessarily,
the pathway in respect of which such easement is canvassed
has to be identified and proved with precision for the grant
of that relief. So much so, where the defendant in his
written statement has categorically stated that the width of
the pathway is 7 to 7.5 feet, at a later stage he cannot be
permitted to canvass that the pathway is having only a
lesser width on the basis of the commission report or any
W.P.(C).No.34493 OF 2009 Page numbers
other material. The learned counsel for the plaintiffs has
also brought to my notice that in the previous commission
report the advocate has reported that the pathway is having
approximately a width of 10 feet. So the evidentiary value
of the statements made by the commissioner in his two
reports, even if they are conflicting, with respect to the
width of the pathway is a matter to be appreciated in the
trial of the suit. The commissioner in his second report
expressed an opinion that the width of the pathway is less,
even assuming it to be so, is not a ground enabling the
defendant to withdraw the admission made earlier in his
written statement as to the width of the pathway. Setting
aside Ext.P8 order, I direct the court below to consider the
amendment application moved by the defendant afresh and
pass appropriate orders taking note of the observations
made above and in accordance with law.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv