Sheeba Vasudevan vs Gopi
2021 Latest Caselaw 14152 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
            THE HONOURABLE MR.JUSTICE V.G.ARUN
 WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
                   OP(C) NO. 495 OF 2020
   OS 177/2015 OF MUNSIFF COURT, WADAKKANCHERY, THRISSUR
PETITIONER/S:

    1    SHEEBA VASUDEVAN
         AGED 38 YEARS
         W/O.ADIYAMPURATH VASUDEVAN, P.O.VENGANELLUR
         DESOM, VENGANALLUR VILLAGE, THALAPPILLY TALUK AND
         D/O.KAPPURUVEETTIL BHARGAVIAMMA PRESENTLY
         RESIDING AT SREELAKAM, KILLANNOOR VILLAGE,
         MULAKUNNATHKAVU DESOM, P.O.MULAKKUNNATHKAVU,
         THRISSUR DISTRICT-680581.
    2    VASUDEVAN
         AGED 47 YEARS
         S/O.ADIYAMPURATH RAGHAVAN, P.O.VENGANELLUR DESOM,
         VENGANALLUR VILLAGE, THALAPPILLY TALUK AND
         PRESENTLY RESIDING AT SREELAKAM, KILLANNOOR
         VILLAGE, MULAKUNNATHKAVU DESOM,
         P.O.MULAKKUNNATHKAVU, THRISSUR DISTRICT-680581.
         BY ADVS.
         M.R.VENUGOPAL
         DHANYA P.ASHOKAN


RESPONDENT/S:

         GOPI,
         AGED 54, S/O.ODAYATTIL SANKU, PARUTHYPRA DESOM,
         ENKAKKAD VILLAGE, KUMARANALLOOR.P.O., THALAPPILLY
         TALUK, THRISSUR DISTRICT, PIN-680690.

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.07.2021,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C)    No.495 of 2020
                                      2



                                JUDGMENT

Dated this the 7th day of July, 2021

Petitioners are the plaintiffs in O.S.No.177

of 2015 pending on the files of the Munsiff Court,

Wadakkanchery. The suit is filed for declaring the

petitioners' right for lateral support to the

plaint 'A' scheduled property and for a mandatory

injunction, directing the respondent/defendant to

restore the lateral support lost by removal of

soil from 'B' scheduled property or, in the

alternative to recover the amount required for

carrying out the restoration work. Based on a

report filed by the expert commissioner appointed

for assessing the cost of restoration, the

petitioners filed an application to amend the

amount mentioned in the relief portion. The

amendment application was dismissed by the court

below and thereupon, the petitioners approached O.P.(C) No.495 of 2020

this Court. By Ext.P5 judgment dated 03.02.2020,

this Court set aside the impugned order and

allowed the amendment application on condition of

the petitioners paying an amount of Rs.25,000/- as

costs within ten days and carrying out the

amendment and remitting the required court fee

within two weeks. It was made clear that failure

to pay the costs or the court fees and to carry

out the amendment within the period specified will

result in the original petition being dismissed.

The petitioners paid the costs and remitted the

court fee within time. On a mistaken notion that

the amendment has to be carried out by the court,

the petitioners filed I.A.No.1 of 2020 to advance

the case and carry out the amendment. By Ext.P8

order, the court below held that the amendment had

to be carried out by the party or the Counsel and

that the petitioners had failed to do so the O.P.(C) No.495 of 2020

needful within the time granted.

2. Learned Counsel for the petitioners

submitted that the bonafides of the petitioners is

borne out from their remittance of costs and court

fees within time. It is contended that the failure

to carry out the amendment was not deliberate and

was due to a bonafide mistaken notion that the

court will carry out the amendment.

3. I am conscious of the effect of failure to

amend stipulated Order VI Rule 18 of the Code of

Civil Procedure. Even then, considering that the

petitioner had paid the costs and remitted court

fees and had submitted the application for

carrying out the amendment within the time

granted, I deem it appropriate to grant one more

opportunity to the petitioners for carrying out

the amendment.

In the result, Ext.P9 is set aside. The O.P.(C) No.495 of 2020

petitioners are granted two weeks' time for

carrying out the amendment. Failure to carry to

the amendment within two weeks of receipt of a

copy of this judgment will result in withdrawal of

the benefit granted herein and resurrection of

Ext.P8 order.

Sd/-

V.G.ARUN JUDGE Scl/ O.P.(C) No.495 of 2020

APPENDIX OF OP(C) 495/2020

PETITIONER ANNEXURE EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 16.2.2015 IN O.S.177/2015 ON THE FILE OF THE MUNSIFF COURT WADAKKANCHERY.

EXHIBIT P2 TRUE COPY OF THE DETAILED CALCULATION REPORT DATED 16.7.2019 PREPARED BY THE ASST. EXECUTIVE ENGINEER, PWD PRODUCED BEFORE THE MUNSIFF COURT, WADAKKANCHERY.

EXHIBIT P3 TRUE COPY OF IA.3107/19 DATED 3.12.2019 IN OS.177/2015.

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17.12.19 IN IA.3107/2019 IN OS.177/2015. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 3.2.2019 IN OPC.14/2020 OF THIS HON'BLE COURT.

EXHIBIT P6 TRUE COPY OF THE MEMO DATED 6.2.2020. EXHIBIT P7 TRUE COPY OF THE IA.1/2020 DATED 18.2.2020 IN OS.177/15 BEFORE THE MUNSIFF COURT WADAKKANCHERY.

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 18.2.2019 IN IA.1/2020 IN OS.177/15 UPLOADED IN THE E COURT'S WEBSITE.

EXHIBIT P9 THE TRUE COPY OF THE ORDER DATED 18.02.2020 IN I.A. 1/2020 IN O.S. NO. 177/2015 ON THE FILE OF THE MUNSIFF COURT, WADAKKANCHERY.