OP(C) NO. 1363 OF 2014

``` OP(C) NO. 1363 OF 2014 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 ``` ## **`OP(C) NO. 1363 OF 2014`** ## **`AGAINST OS 387/2010 OF PRINCIPAL MUNSIFF`** ## **`COURT ,NEYYATTINKARA`** ## **`PETITIONER:`** ``` D.ROBINSON AGED 53 YEARS S/O.DASAN NADAR, KUNNAMKUZHI VEEDU, KUDUMBOTTUKONAM, VATTAVILA P.O., CHENKAL VILLAGE, NEYYATTINKARA TALUK. ``` ``` BY ADV SRI.G.SUDHEER ``` ## **`RESPONDENTS:`** ``` 1LILLY AGED 49 YEARS D/O.BHANU, CHINJU BHAVAN, EZHAKONAM, VATTAVILA P.O., CHENKAL VILLAGE, NEYYATTINKARA TALUK – 695 121 2ASSARI AGED 62 YEARS S/O.SABARIMUTHAN, EZHAKONAM PUTHEN VEEDU, VATTAVILA P.O., CHENKAL VILLAGE, NEYYATTINKARA TALUK – 695 121 ``` ``` BY ADV SRI.M.SREEKUMAR ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 1363 OF 2014 ``` ``` 2 ``` ## **JUDGMENT** Aggrieved by Ext.P7 order passed in I.A No.2236/2014 in O.S No.387/2010 by the Court of the Principal Munsiff, Neyyattinkara, the plaintiff has filed the original petition. The respondents are the defendants in the suit. 2. The relevant brief facts leading to Ext.P7 order are:- (i) The petitioner has filed the suit against the respondents seeking a decree of permanent prohibitory injunction. (ii) The court below had passed an ex-parte order of temporary injunction against the respondents. (iii) The respondents had filed separate written statements denying the allegations in the plaint. (iv) The first respondent has filed another suit ``` OP(C) NO. 1363 OF 2014 ``` ``` 3 ``` against the petitioner as O.S 457/2010 before the Court of the First Additional Munsiff, Neyyattinkara, seeking a decree of injunction and declaration. (v) The first respondent has violated the order of temporary injunction and demolished certain portions of the western boundary of the plaint schedule property. (vi) The respondents had filed O.P (TP) 351/2011 before the Court of the District Judge, Thiruvananthapuram and the latter suit was transferred to the court below for consolidation and joint trial. (vii) When the parties went to trial, the petitioner and the respondents let in evidence. (viii) At that point of time, the petitioner felt that the plaint has to be amended. Resultantly, he filed I.A 2236/2014 (Ext.P6) seeking leave to amend the plaint. The application was opposed by the first respondent. ``` OP(C) NO. 1363 OF 2014 ``` ``` 4 ``` (ix). The court below, by the impugned Ext.P7 order, has dismissed Ext.P6 application on the ground that the trial has commenced. (x) Ext.P7 is manifestly wrong, irregular and improper. Hence, the original petition. 3 Heard; Sri.G.Sudheer, the learned counsel appearing for the petitioner and Sri.M.Sreekumar, the learned counsel appearing for the first respondent. 4. The question is whether there is any illegality in Ext.P7 order. 5. Ext.P1 plaint was instituted on 8.4.2010. The first respondent instituted Ext.P4 plaint on 19.5.2010. 6. Pursuant to the order of the District Court, the suits were ordered to be consolidated and jointly tried by the same court. 7. Indisputably, the petitioner examined himself and three other witnesses as PW1 to PW4 and the first ``` OP(C) NO. 1363 OF 2014 ``` ``` 5 ``` respondent examined himself as DW1. 8. It was at this juncture,that the petitioner filed Ext.P6 application seeking leave to amend the plaint to incorporate a prayer to restore the demolished portion of the western boundary of the plaint schedule property. 9. The petitioner’s case is that, as the suit was ordered to be jointly tried with O.S No.457/2010, the petitioner omitted to include the above prayer. 10. Admittedly, it is after the commencement of trial that the petitioner filed the application seeking amendment of the plaint. 11. In **Life Insurance Corporation of India** v **Sanjeev Builders Pvt.Ltd** [2022 SCC OnLine SC 1128], the Hon’ble Supreme Court has laid down elaborate guidelines to be considered by the Courts while dealing with applications for amendment of pleadings. It is held that applications for amendment of pleadings have to be ``` OP(C) NO. 1363 OF 2014 ``` ``` 6 ``` liberally considered unless the reliefs sought to be incorporated by way of amendment are time barred or hit by Order II Rule 2 of Code of Civil Procedure. 12. In the case on hand, the petitioner’s case in Ext.P6 application is that, he wants to incorporate a prayer for restoration of the demolition of the western boundary wall. 13. It is on record that the Advocate Commissioner visited the plaint schedule property on 12.4.2010 and reported in Ext.C3 report that the granite pillar of the western boundary was demolished three days back. Ext.P6 application was filed on 27.3.2014 i.e., after a period of three years and 11 months. Therefore, the relief sought to be incorporated by way of Ext.P6 application is clearly time barred. 14. Thus, it is only to be concluded that the court below has rightly held that the application is hit by the proviso to Rule 17 of Order VI of the Code of Civil ``` OP(C) NO. 1363 OF 2014 ``` ``` 7 ``` Procedure, and is also time barred. I do not find any reason or circumstance to interfere with Ext.P7 order under Article 227 of the Constitution of India. Nonetheless, I am inclined to direct the court below to consider and dispose of the suit itself, as expeditiously as possible. Resultantly, I dismiss the original petition, but direct the Court of the Principal Munsiff, Neyyattinkara, to consider and dispose of O.S No.387/2010, in accordance with law, as expeditiously as possible. **Sd/-C.S.DIAS** ma/7.3.2023 **JUDGE** ``` OP(C) NO. 1363 OF 2014 ``` ``` 8 ``` ## **`APPENDIX OF OP(C) 1363/2014`** ## `PETITIONER EXHIBITS` ``` EXT.P1.TRUE COPY OF THE PLAINT IN OS NO.387/2010 FILED BY THE PETITIONER BEFORE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 8/4/2010. ``` ``` EXT.P2.TRUE COPY OF THE ORDER IN IA NO.2265/2010 IN OS NO.387/2010 BEFORE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 12/4/2010 ``` ``` EXT.P3.TRUE COPY OF THE WRITTEN STATEMENT IN OS NO.387/2010 FILED BY THE 1ST RESPONDENT BEFORE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 26/3/2010. EXT.P4.TRUE COPY OF THE PLAINT IN OS NO.457/2010 FILED BYTHE SHEELA AND OTHERS BEFORE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 19/5/2010. ``` ``` EXT.P5.TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN OS NO.457/2010 BEFORE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 20/09/2010. ``` ``` EXT.P6.TRUE COPY OF IA NO.2236/2014 IN OS NO.387/2010 FILED BY THE RESPONDENTS BEFORE THE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 27/3/2014. ``` ``` EXT.P7.TRUE COPY OF THE ORDER DATED 1/4/2014 IN IA NO.2236/2014 IN OS NO.387/2010 OF THE THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA ``` ``` EXT.P8.TRUE COPY OF THE RP FILED BY THE PETITIONER IN OS NO.387/2010 FILED BY THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 11/4/2014. ```