Sudheesh P.S vs Sulabha
2021 Latest Caselaw 902 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                        OP(C).No.486 OF 2018(O)

  AGAINST THE ORDER/JUDGMENT IN OS 858/2014 DATED 14-02-2018 OF
                   PRINCIPAL MUNSIFF,ALAPPUZHA


PETITIONER/PLAINTIFF:

             SUDHEESH P.S.
             S/O. SUSHEELAN KUNNUNKAL HOUSE,
             AVALOOKUNNU P.O., SOUTH ARYAD MURI,
             KOMALAPURAM VILLAGE, ALLEPPEY DIST.

             BY ADVS.
             SMT.P.F.ROSY
             SMT.KRIPA ELIZABETH MATHEWS
             SRI.V.M.SYAM KUMAR

RESPONDENTS/DEFENDANTS:

      1      SULABHA
             W/O. RENADEV, VALIYAKOVILAKAM,
             SOUTH ARYAD MURI,
             KOMALAPURAM VILLAGE,
             ALLEPPEY-688 542

      2      RENADEV
             VALIYAKOVILAKAM,
             SOUTH ARYAD MURI,
             KOMALAPURAM VILLAGE,
             ALLEPPEY.688 542

      3      KOUSALYA K. K.
             VALIYAKOVILAKAM,
             SOUTH ARYAD MURI,
             KOMALAPURAM VILLAGE,
             ALLEPPEY.688 542

             R1-3 BY ADV. SRI.P.SHANES METHAR

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C).No.486 OF 2018          2




                            JUDGMENT

Dated this the 11th day of January 2021

The plaintiff in O.S. No. 858/2014 before the Principal

Munsiff, Alappuzha, challenges order dated 14-2-2018 passed by

that court dismissing amendment application filed by him in the

suit for incorporating relief of mandatory injunction also.

2. The suit was originally filed for perpetual injunction

restraining the defendants (respondents herein) from interfering

with user of existing path way. It is stated that during the

pendency of the suit, the path way was blocked which necessitated

amendment of the claim and incorporation of additional prayer for

mandatory injunction as well.

3. The court below dismissed I.A. No. 518/2018

(Amendment Petition) for two reasons:

i) It was filed after commencement of trial and the

petitioner failed to show that he was diligent.

ii) The trial court would be able to take care of the

subsequent event and grant appropriate relief of mandatory

injunction in the event of alleged interference with the subject

matter being proved by plaintiff to have occurred after suit.

4. Heard the learned Counsel for the petitioner. No

representation was made on behalf of the respondents not with

standing them being served with notice of this proceedings.

5. It was argued that in Ext. P5 application for amendment,

a specific ground was taken explaining the reason for instituting

amendment application after commencement of trial. It is

submitted that there was change of vakkalath and a new lawyer

had to take up the cause of the party but in the meantime, the trial

commenced in the meanwhile. This ground is not seen denied by

the respondents. Therefore, I am of the opinion that the delay in

institution of amendment application before commencement of the

trial was not due to willful laches. Since, the test of due diligence

stands satisfied, the court below was not justified in having passed

the impugned order refusing claim for amendment.

6. Even assuming that the alleged subsequent interference

with the path way could be proved by evidence also, and the court

below would be able to take care of the situation, it does not mean

that the court below can justify its action denying the right of the

petitioner to seek to add a new relief of mandatory injunction when

the proposed amendment is indisputably essential to decide the

matter in dispute between parties. For these reasons, I am not in a

position to justify the impugned order.

In the result, the impugned order is set aside and I.A. No.

518/2018 is allowed. The court below will permit the plaintiff to

carry out amendment and further give adequate opportunity to

respondents to submit written statement in answer to the amended

claim. There will, further, be a direction to court below to dispose of

O.S. No. 858/2014 within a period of five months from today on

receipt of certified copy of this order.

Sd/-

T.V.ANILKUMAR JUDGE SMF/11.01

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO. 858 OF 2014 BEFORE THE MUNSIFF COURT ALAPPUZHA.

EXHIBIT P2 TRUE COPY OF THE ADVOCATE COMMISSIONER'S REPORT DTD. 08.10.2014.

EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED DEFENDANTS 1 AND 2 IN OS NO. 858 OF 2014 BEFORE THE MUNSIFF COURT ALAPPUZHA.

EXHIBIT P4 TRUE COPY OF THE ORDER DTD. 10.04.2015 IN IA NO. 886/2015 OF THE LEARNED MUNSIFF COURT, ALAPPUZHA.

EXHIBIT P5 TRUE COPY OF THE IA NO. 548 OF 2018 IN O.S. NO. 858 OF 2014 BEFORE THE LEARNED MUNSIFF COURT, ALAPPUZHA.

EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE 1ST AND 2ND DEFENDANT'S TO I.A.NO. 548 OF 2018 IN O.S.NO.858 OF 2014 BEFORE THE LEARNED MUNSIFF COURT, ALAPPUZHA.

EXHIBIT P7 TRUE COPY OF THE IA NO. 549 OF 2018 IN O.S.NO. 858 OF 2014 BEFORE THE LEARNED MUNSIFF COURT, ALAPPUZHA.

EXHIBIT P8 TRUE COPY OF THE ORDER DTD. 14.02.2018 I.A. NO. 548 OF 2018 IN O.S. NO. 858 OF 2014 BEFORE THE LEARNED MUNSIFF COURT, ALAPPUZHA.

//TRUE COPY// P A TO JUDGE