# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN**
**THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 OP(C) NO. 540 OF 2021**
**AGAINST THE ORDER IN I.A 2/2020 IN OS 451/2009 OF MUNSIFF COURT,ALUVA**
**PETITIONER:**
THOMAS AGED 70 YEARS S/O. OUSEPH, AMBALAKADAN PUTHUPARA HOUSE, DEVAGIRI KARA, THURAVOOR VILLAGE, THURAVOOR POST, PIN - 683572, ALUVA TALUK. BY ADVS. M.G.JEEVAN SHRI.BILAL NIAMATHULLA
## **RESPONDENT:**
POULOSE AGED ABOUT 65 YEARS S/O. OUSEPH, AMBALAKADAN PUTHUPARA HOUSE, DEVAGIRI KARA, THURAVOOR VILLAGE, THURAVOOR POST, PIN - 683572, ALUVA TALUK. BY ADVS. P CHANDRASEKHAR ANOOP KRISHNA(k/001468/2018) C.RAMAN(K/1133/1995) ANAND SANKAR(K/000657/2018) REGIMOL M.K.(K/213/2018) JENNY THANKAM(J-541)
THIS OP (CIVIL) HAVING COME UP FOR ORDERS ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **C.JAYACHANDRAN, J. ======================= O.P(C) No.540 of 2021 ======================== Dated this the 15[th] day of February, 2024**
## **JUDGMENT**
**Under challenge in this Original Petition is Ext P11 Order of the learned Munsiff, Aluva, which refused an amendment sought for to the plaint in O.S No.451/2009 pending before the said court.**
**2. Having heard the learned counsel appearing for the petitioner and the respondent, this Court notice that the suit is one for permanent prohibitory injunction restraining the defendants from trespassing into the plaintiff's property, which is described as 'A' schedule in the plaint; from doing anything interfering with the right, possession and enjoyment of 'A' schedule by the plaintiff; from causing any obstruction to the user of plaint 'B' schedule pathway; from**
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**removing any trees standing in plaint 'B' schedule pathway etc. By Ext P9 application for amendment, the plaintiff/petitioner essentially wanted to introduce two additional reliefs, the first being to put up barbed wire fencing on the disputed boundaries of plaint 'A' schedule property, where he shares boundary with the defendant; and the second additional relief is one again for injunction restraining respondent/defendant from causing any damage to plaint 'B' schedule pathway and also from reducing its width.**
**3. The respondent/defendant filed Ext P10 objection contending that, the amendment sought for is contrary to the title deed of the plaintiff; that, the mistake, if any, in the boundaries of the title deed cannot be corrected by seeking an amendment to the plaint; that, the pleadings pertaining to the additional reliefs C and D are**
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**not there in the plaint; that, the amendment sought for will alter the nature and character of the suit besides being barred by the law of limitation; that, relief for putting up barbed wire fencing in the boundaries cannot be granted without there being a prayer for fixation of boundary; and that, the plaintiff/petitioner can only file a fresh suit based on the new cause of action.**
**4. The learned Munsiff, by the impugned Ext P11 Order, found that, if additional relief C is allowed, that will amount to final disposal of the case, in respect of which observation, this Court is at a loss to understand what the learned Munsiff meant. Another observation of the learned Munsiff is that if there is any trespass into plaint 'A' schedule property, the petitioner could file an application under Order 39 Rule 2A of the Code of Civil Procedure, which again is no satisfactory**
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**reason for disallowing an amendment application. Insofar as prayer D is concerned, which pertains to injunction from reducing the width of the pathway, the learned Munsiff found that the plaintiff had no apprehension, as pleaded in the plaint, in respect of reducing the width of the pathway, for which reason, the relief sought for cannot be granted.**
**5. As already indicated, the reasons found by the learned Munsiff for disallowing the amendment application are not satisfactory and cannot be sustained.**
**6. It is relevant to note that, in the plaint, as it exists now, what is described as 'A' schedule is the plaintiff's property and 'B' schedule, the disputed pathway. By virtue of Ext P9 amendment, the plaintiff/petitioner wanted to introduce an additional schedule as 'C', whereby he seeks to describe the defendant's property having an extent**
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**of 33.12 Ares. In Ext P9 amendment application, an additional relief for erecting barbed wire fencing in two boundaries of plaint 'A' schedule property is sought for. The first is on the western boundary, which demarcates between plaint 'B' schedule pathway and plaint 'A' schedule property of the plaintiff/petitioner. The second is the southern boundary of plaint 'A' schedule property, where the plaintiff/petitioner shares his boundary with the proposed 'C' schedule property of the defendant/respondent. A question looms large as to whether the relief for putting up a boundary by barbed wire fencing can be allowed without there being a prayer for fixation of boundary. Two aspects surface for consideration in this regard. The first pertains to the question whether the allowability of a relief sought for by virtue of amendment is strictly a valid consideration while**
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**considering an application for amendment. It is true that it is one for consideration. However, the question is whether an amendment can be refused for the reason that the relief sought for is apparently not liable to be granted.**
**7. The second aspect is with respect to Ext P4**
**Commission Report, which is preferred after measuring out the property, indicating the boundaries of plaint 'A' and 'B' schedule properties and also the defendant's property. The question as to whether the proposed additional relief for fencing the boundary can be granted on the basis of Ext P4 Commission Report and plan, is something to be decided after the trial and while adjudicating the suit finally. This Court is of the opinion that the amendment sought for need not be refused at this stage for the reason that the relief for putting up a barbed wire fencing**
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**alongside the two boundaries, as sought for, is difficult to be granted apparently, in the absence of a prayer for fixation of boundary. The question as to whether the additional relief can be allowed or not can be decided at the time of final adjudication.**
**8. As regards the additional relief sought for vide prayer no.D, which pertains to an injunction from reducing the width of plaint 'B' schedule pathway, this Court finds no reason as to why the same should not be granted. The technical reason found by the learned Munsiff that there is no plea with respect to any apprehension of the plaintiff that the defendant would do so, cannot be considered as a valid reason for refusing that amendment.**
**9. As it is well settled, amendments are liable**
**to be considered liberally, unless it alters the**
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**nature and character of the suit, especially when the relief sought for is not barred by the law of limitation. It is relevant to note that the amendment is sought for much before the commencement of the trial. Even with respect to a time barred relief, the law is settled way back in 1967 in** _**A.K.Gupta and Sons Ltd.**_ **v** _**Damodar Valley Corporation [AIR 1967 SC 96]**_ **In the instant facts, it is not explained as to how the relief is time barred, except taking a bald assertion in the objection that the relief is so barred. This Court notice that the additional relief sought for by way of amendment is nothing but an extension of the existing pleadings and relief sought for in the plaint. No serious additional pleadings are sought to be incorporated to the plaint for sustaining the additional relief sought for. The plaintiff's intention was to protect his property namely plaint**
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**'A' schedule property and also his user over plaint 'B' schedule pathway. It is in furtherance of that intention that the additional reliefs are sought for.**
**10. In the light of the above discussion, the additional relief sought for by way of amendment ought to have been allowed. In the circumstances, Ext P11 Order cannot be sustained. Ext P9 application for amendment is allowed. The court below will proceed with the suit after effecting/ incorporating the amendments sought for.**
**The Original Petition is disposed of as above.**
**Sd/-**
## **C.JAYACHANDRAN, JUDGE**
**vdv**
## **APPENDIX OF OP(C) 540/2021**
|PETITIONER EXHIBITS|PETITIONER EXHIBITS|
|---|---|
|EXHIBIT P1|TRUE PHOTO COPY OF THE PLAINT IN|
||O.S.451/2009 DATED 20.11.2009 ON THE|
||FILE OF MUNSIFF'S COURT, ALUVA.|
|EXHIBIT P2|COPY OF REGD. PARTITION DEED NO.5375/95|
||DATED 30.12.1995 OF ANGAMALY SRO.|
|EXHIBIT P3|TRUE PHOTO COPY OF THE WRITTEN|
||STATEMENT DATED 20.02.2010 O.S.451/2009|
||ON THE FILE OF MUNSIFF'S COURT, ALUVA.|
|EXHIBIT P4|TRUE PHOTO COPY OF THE COMMISSIONERS'|
||REPORT AND PLAN IN O.S.451/2009 DATED|
||JUNE 2015.|
|EXHIBIT P5|TRUE PHOTO COPY OF JUDGMENT DATED|
||20.01.2016 IN O.S.451/2009.|
|EXHIBIT P6|TRUE PHOTO COPY OF EXECUTION PETITION|
||E.P.80/18 DATED 14.09.2018.|
|EXHIBIT P7|TRUE PHOTO COPY OF I.A.NO.2376/18 DATED|
||13.12.2018 IN O.S.451/2009 FILED BY|
||RESPONDENT.|
|EXHIBIT P8|TRUE PHOTO COPY OF I.A.NO.2377/18 DATED|
||13.12.2018 IN O.S.451/2009 FILED BY|
||RESPONDENT.|
|EXHIBIT P9|TRUE PHOTO COPY OF I.A.NO.2/2020 DATED|
||02.11.2020 IN O.S.451/2009 FILED BY|
||PETITIONER.|
|EXHIBIT P10|TRUE PHOTO COPY OF OBJECTION FILED BY|
||RESPONDENT I.A.NO.2/2020 IN|
||O.S.451/2009.|
|EXHIBIT P11|TRUE PHOTO COPY OF ORDER DATED|
||04.01.2021 IN I.A.NO.2/2020 IN|
||O.S.451/2009.|
