IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 23745 of 2009(O) 1. THALAYANKANDI THARIKUTTY HAJI, ... Petitioner Vs 1. PALLIPATH SHEREEFA, D/O.ABU HAJI, ... Respondent 2. PALLIPPATH MAMMAD, 3. KAYAKKUL VALLIPARAMBATH ABU, For Petitioner :SRI.CIBI THOMAS For Respondent : No Appearance The Hon'ble MR. Justice S.S.SATHEESACHANDRAN Dated :20/08/2009 O R D E R S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.23745 of 2009 - O --------------------------------- Dated this the 20th day of August, 2009 J U D G M E N T
The writ petition is filed seeking the following reliefs:
“i) To issue a writ of certiorari calling for the
records relating to Ext.P6 and quash the original of
ii) To declare that the amendment if allowed will
change the entire nature and character of the suit.”
2. Petitioner is the first defendant in O.S.No.240 of 2000
on the file of the Munsiff Court, Koothuparambu. The above suit
was filed for a decree of perpetual prohibitory injunction, by the
first respondent in which he later moved an application for
amending the suit as one for declaration of title and recovery of
possession. Ext.P4 is the copy of that application for
amendment. Though the amendment was objected to by the
petitioner, learned Munsiff allowed the application vide P6 order.
Propriety and correctness of P6 order is challenged in the writ
petition invoking the supervisory jurisdiction vested with this
Court under Article 227 of the Constitution of India.
3. I heard the learned counsel for the petitioner.
W.P.(C).No.23745 of 2009 – O
4. Having regard to the submissions made and the facts
and circumstances presented with reference to P6 order and
other material tendered in the writ petition, I find no notice to the
respondents is necessary and hence it is dispensed with.
5. The grievance espoused by the learned counsel for the
petitioner is that the court below has expressed some views over
the plea of limitation canvassed by the defendants which,
ultimately may affect the suit on its disposal on meirt. Perusing
P6 order, I find in examining the question whether the
amendment relate back to the date of suit, or from the date of
allowing it, which alone was canvassed by the defendants as
permissible in the given facts of the case the learned Munsiff has
expressed some views that the plea of limitation canvassed by
the defendants has on no basis. In exercise of visitorial
jurisdiction vested with this Court, I do not propose to examine
the propriety or correctness of the observations made in P6
order. But, I make it clear that the suit has to be disposed of
untrammelled by any of the observations made in P6 order on
the basis of the evidence to be adduced by the parties in support
W.P.(C).No.23745 of 2009 – O
of their respective case and the legal principles applicable.
Subject to the above observations, the writ petition is