Babu vs Moni
2021 Latest Caselaw 22088 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
              THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                     OP(C) NO. 634 OF 2020
       OS 219/2014 OF PRINCIPAL MUNSIFF COURT, KOCHI,
                             ERNAKULAM
PETITIONER/S:

            BABU
            AGED 70 YEARS
            SON OF KRISHNAN,RESIDENT OF CC 12/755-
            B,KOCHENCHERRY PARAMBU,V.P.ANTONY ROAD,
            PALLURUTHY NORTH MURI,RAMESWARAM VILLAGE,
            KOCHI TALUK,PIN-682006.
            BY ADVS.
            M.A.AUGUSTINE
            SRI.A.R.NIMOD

RESPONDENT/S:

            MONI
            WIFE OF THUNDIPARAMBIL RAMACHANRAN,RESIDENT OF
            KOCHANCHERRY PARAMBU,P.ALLURUTHY NORTH MURI,
            RAMESWARAM VILLAGE,KOCHI TALUK,
            PIN-682006.
            BY ADVS.
            SRI.A.ANTONY
            SMT.LEELAMMA ANTONY


     THIS    OP   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 634 OF 2020

                                  -2-



                              JUDGMENT

Dated this the 05th day of November, 2021

Petitioner is the defendant in O.S.No.219 of

2014 on the files of the Munsiff's Court, Kochi.

The prayer in the suit filed by the respondent is

to declare the boundaries of the plaint schedule

property in accordance with the plan and report

submitted by the Advocate Commissioner, after

measuring the property with the assistance of a

competent surveyor. The other prayer is for a

permanent prohibitory injunction restraining the

petitioner and her husband from trespassing and

obstructing the construction of the boundary wall

on the northern and eastern boundaries of the

plaint schedule property. The Advocate

Commissioner filed Ext.C1 report along with

sketch. Neither of the parties filed objection to

the Commissioner's report and sketch. The suit OP(C) NO. 634 OF 2020

was listed for trial on 01.01.2020 and evidence

of the plaintiff was recorded and documents

marked. The defendant filed memo stating that no

evidence is being adduced from the defendant's

side. Thereupon, the case was posted for final

hearing. At that juncture, the plaintiff filed

Ext.P5 application for amending the plaint and

including the property of the defendant as C

schedule. The petitioner raised objection

contending that the attempt of the respondent is

to fill up the lacuna in his case and that the

proviso to Order VI Rule 17 prohibits

consideration of an application for amendment

filed after the suit is listed for trial. In

spite of the objection, the amendment application

was allowed on costs. Hence, the original

petition.

2. Heard Sri. Augustine M.A, learned

Counsel for the petitioner and Sri.A.Antony,

learned Counsel for the respondent. OP(C) NO. 634 OF 2020

3. Learned Counsel for the petitioner

contended that both parties having not objected

to the commissioner's report and sketch, the suit

could be decreed on the basis of the sketch and

in such circumstances, an amendment to the plaint

is unwarranted. It is contended that the

amendment application filed after commencement of

trial ought to have been rejected in view of the

prohibition contained in Order VI Rule 17 CPC.

4. Learned Counsel for the respondent

submitted that the amendment was necessitated in

view of the decision of this Court in Nandakumara

Varma and another v. Usha Varma and another [2015

(1) KLJ 73] holding that for maintaining a suit

for fixation of boundary, it is essential to

schedule the properties of both parties to the

suit. It is contended that the proviso to Order

VI Rule 17 is not an absolute embargo and the

pleadings can be amendment even at the appellate OP(C) NO. 634 OF 2020

stage. The suit being one for fixation of

boundary, it is essential to describe and

schedule the properties of both parties in the

plaint. Otherwise, the plaintiff will be non-

suited on that ground. Therefore, the respondent

had justification in seeking the amendment.

5. It is true that the application for

amendment was filed after the suit being listed

for trial. In this context, it may be relevant

to note that the suit was decreed ex-parte twice

and the respondent had even filed an execution

petition. Later the ex-parte decree was set aside

and in the meanwhile, the legal position with

respect to suit for fixation of boundary was laid

down by this court as per the decision in

Nandakumara Varma. It is settled law that

applications for amendment should be construed

liberally and commencement of trial cannot, under

all circumstances, be a reason for dismissing OP(C) NO. 634 OF 2020

such applications. In the instant case, the fact

that the amendment is essential for maintaining

the suit and also for determining the real

questions and controversy between the parties

cannot be disputed. The petitioner's remedy is to

file additional written statement to the amended

plaint and raise his all contentions, including

the contention that the suit is liable to be

decreed based on the commissioner's report and

sketch. I also find merit in the contention of

the learned Counsel for the petitioner that,

considering the stage at which the amendment

application was filed, the trial court ought to

have imposed exemplary costs.

In the result, the original petition is

allowed in part by enhancing the cost to

Rs.5,000/- (Rupees five thousand only), while

declining to interfere with the order, insofar as

permission is granted to amend the plaint by

including the property of the respondent as OP(C) NO. 634 OF 2020

plaint C schedule property. The cost shall be

paid within two weeks of receipt of a copy of

this judgment. The petitioner shall be permitted

to file additional written statement within one

month of the plaint being amended.

Sd/-

V.G.ARUN JUDGE Scl/05.11 OP(C) NO. 634 OF 2020

APPENDIX OF OP(C) 634/2020

PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE O.S.NO.219 OF 2014 DATED 22.5.2014 OF THE COURT OF MUNSIFF,KOCHI EXHIBIT P2 COPY OF THE WRITTEN STATEMENT DATED 19.8.2019 IN O.S.NO.219 OF 2014 OF THE COURT OF MUNSIFF,KOCHI EXHIBIT P3 COPY OF THE COMMISSIONER REPORT DATED 29.2.2016 ALONG WITH SKETCH IN O.S.NO.219 OF 2014 OF THE COURT OF MUNSIFF,KOCHI.

EXHIBIT P4 COPY OF THE ARGUMENT NOTE DATED 10.1.2020 FILED BY THE PETITIONER IN O.S.NO.219 OF 2014 OF THE COURT OF MUNSIFF,KOCHI EXHIBIT P5 COPY OF THE I.A.2 OF 2020 DATED 14.01.2020 FILED BY THE PLAINTIFF IN O.S.NO.219 OF 2014 OF THE COURT OF MUNSIFF,KOCHI EXHIBIT P6 COPY OF THE COURT AFFIDAVIT DATED 29.01.2020 IN I.A.NO.2 OF 2020 IN O.S.NO.219 OF 2014 OF THE COURT OF MUNSIFF,KOCHI EXHIBIT P7 COPY OF THE ORDER IN I.A.NO.2 OF 2020 DATED 4.2.2020 IN O.S..NO.219 OF 2014 OF THE COURT OF MUNSIFF,KOCHI.