IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32345 of 2008(A)
1. THANKAPPAN PILLAI, S/O.SANKARA PILLAI,
... Petitioner
Vs
1. BALAKRISHNA PILLAI, S/O.GOPALA PILLAI,
... Respondent
2. SUDHAKARAN, KOCHUPARAMBIL, AROOR VILLAGE
3. SULABHA, W/O.SUDHAKARAN, KOCHUPARAMBIL,
For Petitioner :DR.V.N.SANKARJEE
For Respondent :SRI.SHAJI THANKAPPAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :22/06/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.C.NO.32345 OF 2008
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Dated this the 22nd day of June 2009
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JUDGMENT
The writ petition is filed under Article
227 of the Constitution of India seeking the
following reliefs.
1) Issue a writ petition of certiorari or any
other appropriate writ, direction or order,
quashing Ext.P5 after calling for the
records relating thereto and allow I.A
No.1047/2007 in O.S No. 89/2007 on the
file of the Principal Munsiff’s Court,
Cherthala.
2) Pass such other orders as this
Honourable Court deems fit and proper in
the facts and circumstances of the case.
W.P.C.No.32345/2008 2
2) Petitioner is the plaintiff in O.S No.
89/2007 pending on the file of Munsiff’s Court,
Cherthala. Respondents are the defendants in that
suit. Suit was filed for declaration that
plaintiff has prescribed right of easement over ‘C’
schedule, for injunction and other consequential
reliefs. Recovery of the property described as ‘D’
schedule was also sought from the defendants. Suit
was laid raising allegations that the plaintiff has
absolute title and possession over ‘A’ schedule
property having an extent of 22 cents. After an
inspection over the schedule properties was
conducted by the Advocate Commissioner, and a
report with a plan filed, the plaintiff moved an
application to amend the plaint and also the
schedules to make out that ‘A’ schedule is having
an extent of 12 cents and the length of the pathway
described is much more than what was stated
earlier. Amendment application was resisted by
defendants filing written objections. Learned
W.P.C.No.32345/2008 3
Munsiff after hearing both sides found merit in the
objection raised by the defendants that the
proposed amendment will cause them prejudice and
they cannot be considered as simple mistakes which
have crept in inadvertently while drafting the
plaint. Taking that view the amendment application
was dismissed. Ext.P5 is the copy of that order.
Impeaching Ext.P5 order petitioner/plaintiff has
filed this petition invoking the supervisory
jurisdiction vested with this court under Article
227 of the Constitution of India.
3) I heard the counsel of both sides. Having
regard to the facts and circumstances and taking
note of the submissions presented I find that the
proposed amendment sought for by the plaintiff, if
allowed, as rightly found by the Learned Munsiff
would cause prejudice to the defendants, especially
in the nature of the relief claimed for recovery of
‘D’ schedule property setting forth a case they
have unlawfully trespassed upon that property. In
W.P.C.No.32345/2008 4
case the plaintiff finds that the suit must fail on
account of a formal defect in pleadings it is open
to him to move for withdrawal of the suit with
liberty and file a suit afresh. If any such
application is moved,the learned Munsiff shall
dispose such application taking note of the facts
and circumstances involved. Where there are no
circumstance warranting denial of that relief,
normally, such a relief is to be permitted when a
suit is liable to fail on account of formal
defects. Subject to the above observations
granting liberty to the plaintiff to move for
withdrawal of the suit, if so advised, seeking
permission to file a suit afresh, the writ petition
is dismissed.
S.S.SATHEESACHANDRAN,J
JUDGE
VDV