O.P.(C) No. 61 of 2010 (O.S. 47/2009, Munsiff Court, Chittur)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL MONDAY, THE 2ND DAY OF APRIL 2012/13TH CHAITHRA 1934 OP(C).No. 61 of 2010 (O) -----------------------OS.47/2009 of MUNSIFF COURT, CHITTUR PETITIONER(S)/PETITIONERS/PETITIONERS/PLAINTIFFS: ------------------------------------------------ 1. UMMUSALEE BEEVI,W/O.MOHAMMED HANEEFA, KAITHAPPARA CHALLA,THEKKEDESOM VILLAGE CHITTUR TALUK,PALAKKAD DISTRICT. 2. SULAIMAN,S/O.MOHAMMED KHANI RAWTHER, KUTTIPPALLAM,THEKKEDESOM VILLAGE,CHITTUR TALUK PALAKKAD DISTRICT. BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ------------------------------------- 1. RAMAKRISHNAN,S/O.VELAYUDHAN, NEAR NOORUL HUDHA MOSQUE,KAITHAPPARA CHALLA VALIYAVALLAMPATHY VILLAGE,VALIYAVALLAMPATHY.P.O CHITTUR TALUK,PALAKKAD DISTRICT. 2. MANIKANTAN,S/O.VELAYUDHAN, -DO-DO- 3. BHAGEERATHAN,S/O.VELAYUDHAN, -DO- -DO4. KANNAN,S/O.VELAYUDHAN, -DO- -DO5. PARTHIPAN,S/O.VELAYUDHAN, -DO- -DOBY ADV. SRI.P.R.VENKETESH BY ADV. SRI.P.R.RAJA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: EXT.P1 COPY OF THE PLAINT IN OS.NO.47/09 ON THE FILE OF MUNSIFF'S COURT, CHITTUR. EXT.P2 COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN EXT.P1 SUIT. EXT.P3 COPY OF THE AMENDMENT APPLICATION VIZ I.A.NO.1149/10 IN OS.NO.47/09 ON THE FILE OF MUNSIFF'S COURT, CHITTUR. EXT.P4 COPY OF THE OBJECTION SUBMITTD BY THE RESPONDENTS IN EXT.P3 PETITION. EXT.P5 COPY OF THE ORDER DATED 13.8.2010 PASSED IN IA.NO.1149/10 IN OS.NO.47/09 ON THE FILE OF MUNSIFF'S COURT, CHITTUR. /TRUE COPY/ P.S. TO JUDGE. CL **K. HARILAL, J.** ------------------------------------- ## **O.P.(C)NO.61 OF 2010** ------------------------------------Dated this the 2[nd] day of April, 2012 ## **JUDGMENT** Petitioners are the plaintiffs in O.S.No.47/2009 on the file of the Munsiff Court, Chittur as well as petitioners in I.A.No.1149/2010 filed therein. Respondents are the defendants in the above said suit as well as counter petitioners in the above said I.A. 2. The suit was one for injunction restraining the defendants/respondents from entering into the plaint schedule properties 1 and 2 and not to make any interference in the water cannal lying in the plaint schedule item No.2 property. According to the plaintiffs, plaint item No.1 belongs to the plaintiffs by virtue of purchase deed No.166/2002 on the file of the Chittur Sub Registry and item No.2 property belongs to plaintiff No.2/petitioner No.2 by virtue of the sale deed No.1562/1987 on the file of Chittur Sub Registry. The neighbouring properties of item No.1 are in ownership and possession of husband and mother-in-law of petitioner No.1. It is further contended that RBC canal is passing through the eastern side of the O.P.(C)NO.61 OF 2010 : 2 : plaint schedule item No.2 after abutting plaint schedule item No.2 property and water had been drawing to the paddy field through the small canal passing through item No.2. The suit is filed on the apprehension that defendants are trying to trespass into the plaint schedule properties and to make interference with the said small canal passing through item No.2. 3. The defendants entered appearance and filed written statement contending that petitioner No.2 does not have any property as stated above and as he claimed in the plaint. It is also contended that no such property could have even been identified at the spot. Thus, identity of item No.2 property is disputed by the defendants. They also pleaded that existence and lie of item No.2 have to be proved by petitioner No.2 beyond doubt. 4. In the meantime, defendants 3 to 5 filed O.S.No.52/2009 before the Munsiff Court, Chittur for injunction restraining petitioner No.2 and husband of petitioner No.1 from entering into the plaint schedule property therein and not to do any illegal activities including O.P.(C)NO.61 OF 2010 : 3 : digging of canal through the said property. In that suit also they claim that northern boundary of the plaint schedule property therein is the road and eastern property is RBC Canal. Therefore it could be seen that both parties are claiming right over item No.2. 5. In the above context, the petitioners herein filed an application for amendment contending that the real matter in dispute can be resolved by identifying and demarcating item No.2 in accordance with the title deed and revenue records and also by fixing the disputed southern boundary of item No.2. Amendment is sought for measuring the property on the basis of survey records and title deeds and also for fixing southern boundary of item No.2. 6. The respondents/defendants filed an objection stating that the pleadings sought to be amended would alter the nature and character of the suit itself and it amounts to fundamental alteration of pleadings. The nature of the suit itself will be changed by the amendment and thereby sufficient prejudice will be caused to the defendants. According to them, there is no bonafide and the amendment O.P.(C)NO.61 OF 2010 : 4 : is intended to protract the matter. 7. The learned counsel for the petitioners submits that the proposed amendment will not change the nature and character of the suit. The learned Munsiff ought to have allowed the amendment sought to be incorporated in view of the rival contentions. It is incorrect to say that the character of the suit will be changed, if the amendment is allowed. It is the contention of the petitioners that southern property of item No.2 belongs to the defendants and now the property is lying contiguously with the southern property. In these circumstances southern boundary of item No.2 property had to be fixed on the basis of the title deed to grant appropriate relief and then only a complete adjudication of the matter is possible or it may cause even multiplicity of proceedings. 8. Per contra, the counsel for the respondents argued that there is no bonafide in the petition and it is intended to protract the suit. According to the counsel, the proposed amendment would alter the nature and character of the suit. Amendment is sought for measuring and fixing southern O.P.(C)NO.61 OF 2010 : 5 : boundary of a non-existing plot and it is evident from the village records and their own title. Therefore, no purpose would be served by allowing the amendment sought for. 9. I Heard the learned counsel for the petitioners and the respondents respectively and I have given anxious consideration to the rival contentions advanced by the counsel. The matter in dispute centers around the identity of item No.2. Initially the suit was filed for injunction restraining the defendants from trespassing into the property and interfering with the lie of the canal. But in the written statement the respondents have challenged the identity of the property itself. According to the respondents, there is no property as described as item No.2 in between eastern RBC canal and item No.1. In view of the contentions in the written statement and averments in O.S.No.52/2009,the property which is lying on the western side of RBC canal and extended up to northern road belongs to the respondents. Therefore, according to them, the petitioners herein have no such property on the western side of eastern RBC canal. So, it could be seen that the contentions raised in the O.P.(C)NO.61 OF 2010 : 6 : written statement necessitated to identify the existence of item No.2 as claimed. 10. The settled legal position regarding amendment is that amendment can be allowed at any stage, but amendment changing the nature of the case not to be allowed. All amendments sought to be allowed will satisfy two conditions: (a) the amendment must be necessary for the purpose of determining the real question in controversy between the parties and (b) it shall not cause prejudice to the opposite party. In **B.K. Narayana Pillai v. Parameswaran Pillai** (2000 (1) SCC 712) the Supreme Court held as follows: “The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities O.P.(C)NO.61 OF 2010 : 7 : of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.” ## 11. In **A.K. Gupta & Sons Ltd. v. Damodar Valley** **Corpn** . (AIR 1967 SC 96) the Supreme Court held as follows: “The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v., Neal (1887) 19 QBD 394: 56 LJ QB 621. But it is also well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to not more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation”. 12. In the light of the above decisions, I have scrutinized the nature and character of the amendment sought for. The power to allow amendment is undoubtedly wide and may at any stage, we appropriately exercise in the interest of justice. Where the amendment does not constitute addition of a new cause of action or raise a different case, but amounts O.P.(C)NO.61 OF 2010 : 8 : to an addition to the same facts, the amendment will be allowed. Here amendment is seen called for by the contention raised in the written statement denying the identity of the property. Therefore, amendment is sought for identifying the property and resolving the dispute for ever. That does not constitute addition of a new cause of action or a different case. This is an additional approach to the same facts and same cause of action. The proposed amendment will not alter the present cause of action and the present cause of action still stands as genesis of the dispute. I hold that the proposed amendment neither change the character of the suit nor substitute the cause of action and it is inevitable for determining the real question of controversy between the parties and no prejudice will be caused to the respondents and they will be benefited also by resolving the dispute for ever. 13. In the result, the impugned order is set aside and I.A.No.1149/2010 is allowed. The petitioners are allowed to amend the plaint as prayed for. The court below is directed to take steps to carry out the amendment in O.P.(C)NO.61 OF 2010 : 9 : accordance with law. This original petition stands allowed as above. Sd/- **K. HARILAL, JUDGE.** cl