Meera and Others v Joy and Beena and Subi

OP(C) NO. 2927 OF 2018 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943** ## **OP(C) NO. 2927 OF 2018** ## **IN OS 7/2012 OF MUNSIFF COURT,WADAKKANCHERY, THRISSUR** ## **PETITIONERS:** - **1 MEERA AGED 56 YEARS W/O.KAKASSERYVEETIL LATE SOMAN, MUNDATHIKODE VILLAGE DESOM, TALAPILLY TALUK, THRISSUR-680623.** - **2 SHOBI, AGED 34 YEARS S/O. KAKKASSERY MEERA, MUNDATHIKODE VILLAGE DESOM, TALAPPILLY TALUK, 680623** - **3 SOMI, AGED 34 YEARS S/O. KAKKASSERY MEERA, MUNDATHIKODE VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR 680623** **BY ADV G.SREEKUMAR (CHELUR)** ## **RESPONDENTS:** - **1 JOY AGED 58 YEARS S/O.KANNAMBUZHA MANNUTHIVEETIL THOMAS, MUNDATHIKODE VILLAGE DESOM, TALAPILLY TALUK, THRISSUR 680623.** - **2 BEENA AGED 49, W/O.KANNAMBUZHA MANNUTHIVEETIL JOY, MUNDATHIKODE VILLAGE DESOM, TALAPILLY TALUK, THRISSUR 680623.** - **3 SUBI, AGED 29, S/O.KAKKASSERY MEERA, MUNDATHIKODE VILLAGE DESOM, TALAPILLY TALUK, THRISSUR 680623.** **BY ADVS.** **SRI.SANTHOSH P.PODUVAL FOR R1 & R2 SMT.R.RAJITHA FOR R1 & R2** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(C) NO. 2927 OF 2018 2 ## **JUDGMENT** ## **Dated this the 28[th] day of October, 2021** Petitioners are the defendants in O.S.No.07 of 2012 on the files of the Munsiff’s Court, Wadakkanchery, and is aggrieved by Ext.P8 common order, allowing the plaintiff’s application for amending the plaint, as also the written statement to the counter claim filed by the defendants. The essential facts are as under; 2. The respondents filed the suit praying for a permanent prohibitory injunction, restraining the petitioners from obstructing their peaceful user of plaint B schedule way. The relief is focused on the pleading that plaint B schedule is a public way and like every member of the public, the plaintiffs also have the right to use the way, without being obstructed by the defendants. 3. The petitioners filed written statement contending that the plaint B schedule way is part of their property and the respondents have no right to OP(C) NO. 2927 OF 2018 3 use the way. The petitioners also raised a counter claim, praying for an injunction restraining the respondents from using the way. 4. The Advocate Commissioner appointed in the suit filed Ext.P3 report and plan showing the nature and description of plaint B schedule way. Thereafter, the plaintiffs filed Exts.P4 and P5 applications seeking to amend the plaint and their written statement to the counter claim. By the amendment, the plaintiffs sought to change the pleadings to the effect that plaint B schedule is part of the defendants property and the plaintiffs have acquired prescriptive right over the way, by long and continuous user. Amendments were also sought to be made to the description of plaint B schedule way. The amendments were opposed, contending that the attempt is to alter the very nature of the suit. By Ext.P8 order, the trial court allowed the applications, finding the amendments to be necessary for determining the real questions in controversy between the parties and for just and effective OP(C) NO. 2927 OF 2018 4 ## adjudication of the case. 5. Adv. G. Sreekumar (Chelur), learned Counsel for the petitioners drew attention to the plaint, the written statement and amendment applications to contend that, by the amendment, the petitioners are seeking to change the colour, texture and nature of the suit. It is submitted that Ext.P3 Commission report was filed way back on 24.11.2014 and the amendment application was filed in the year 2018. It is contended that the attempt is to change the material facts that had given rise to the cause of action for filing the suit. The further contention is that the plaintiffs cannot be allowed to withdraw their admissions, to the prejudice of the defendants, who have set up their defence based on the original pleadings. Finally it is argued that the trial court to have at least made the amendment prospectus. Learned Counsel placed reliance on the decision of the Hon’ble Supreme Court in **Kayalulla Parambath Moidu Haji v. Namboodiyil Vinodan** [ **2021 (5) KHC 430],** to contend that there should OP(C) NO. 2927 OF 2018 5 be a comprehensive suit for declaration, in as much as the respondents are seeking the relief of injunction based on their alleged easementary right acquired by prescription whereas in the case at hand, the suit continues to be one for injunction simplicitor, even after the amendment. 6. Adv. Santhosh P. Poduval, learned Counsel for the respondents, stressed on the essential distinction between an amendment that would change the nature of the suit and one that seeks to change the pleadings alone. According to the learned Counsel, herein, though the amendments may appear to be drastic at the first blush, only the pleadings, and not the nature of the suit is sought to be changed. It is submitted that the original prayer for injunction, restraining the defendants from obstructing the user of B schedule pathway, is not altered. Elaborating on the point, learned Counsel submitted that the averment in the plaint that, the plaintiffs are being obstructed by defendants from using B schedule way, is retained as such and the only change is that the OP(C) NO. 2927 OF 2018 6 plaintiffs admit the defendants title over B schedule way and are seeking to establish their right to use the way based on prescriptive easement. It is submitted that the amendment has been carried out and the suit is listed for trial. 7. Having heard the learned Counsel and having scrutinized the plaint, written statement and the application for amendment, I find that though drastic changes are sought to be made to the pleadings, the nature of the suit continues to be same. The contention based on the decision in **Moidu Haji** (Supra) is concerned, is to be raised before the trial court. The alleged defect in the plaint is no reason to reject the amendment application. The contention that the amendment should be made prospective can also be urged before the trial court. 8. For the aforementioned reasons the Original Petition is dismissed. 9. Learned Counsel for the petitioners submitted that the petitioners have not filed their additional written statement to the amended claim and unless OP(C) NO. 2927 OF 2018 7 specifically directed, they will be denied such opportunity by the trial court. I find the submission to be well founded. Therefore, the trial court is directed to provide an opportunity to the petitioners to complete their pleadings within one month. The Original Petition is dismissed as above. **Sd/-** **V.G.ARUN JUDGE** NB/28-10 OP(C) NO. 2927 OF 2018 8 ## **APPENDIX OF OP(C) 2927/2018** ## **PETITIONERS’ EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O S NO. 7 OF 2012 DATED 3.1.2012 ON THE FILE OF THE MUNSIFF COURT, WADAKKANCHERY** **EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT WITH COUNTER CLAIM IN EXT P1 SUIT FILED DATED 21.5.2012** **EXHIBIT P3 A TRUE COPY OF THE REPORT AND PLAN IN EXT P1 SUIT DATED 24.11.2014** **EXHIBIT P4 A TRUE COPY OF THE I A NO. 1785 OF 2017 IN EXT P1 SUIT DATED 12.7.2017 EXHIBIT P5 A TRUE COPY OF THE I A NO. 1158 OF 2018 IN EXT P1 SUIT DATED 23.5.2018 EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED IN IA NO. 1785 OF 2017 IN EXT P1 SUIT DATED 27.3.2018 EXHIBIT P7 A TRUE COPY OF THE OBJECTION FILED IN I A NO. 1158 OF 2018 IN EXT P1 SUIT DATED 7.6.2018** **EXHIBIT P8 A TRUE COPY OF THE COMMON ORDER PASSED IN I A NOS 1785 OF 2017 AND I A NO. 1158 OF 2018 IN EXT P1 SUIT DATED 13.09.2018 ON FILED OF THE MUNSIFF COURT, WADAKKANCHERY** ## **RESPONDENTS’ EXHIBITS: NIL** ## **True Copy** **P.A to Judge**