Chevidantakath Puthiyapurayil ... vs Kaniyatchal Mandante Valappil ...
2021 Latest Caselaw 21096 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE V.G.ARUN
  WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA,
                             1943
                     OP(C) NO. 434 OF 2020
        OS 370/2015 OF ADDITIONAL MUNSIFF COURT, KANNUR
PETITIONER/S:

            CHEVIDANTAKATH PUTHIYAPURAYIL ABDUL RAOOF
            AGED 55 YEARS
            S/O. JAMAL, RESIDING AT C. P. HOUSE,
            THANGALVAYAL, P. O. VALAPATTANAM, KANNUR - 670
            010.
            BY ADVS.
            ABDUL RAOOF PALLIPATH
            SRI.K.R.AVINASH (KUNNATH)
            SRI.E.MOHAMMED SHAFI
            SRI.C.H.ABDUL RASAC
            SRI.PRAJIT RATNAKARAN
            SHRI. RAJ CAROLIN V.

RESPONDENT/S:

    1       KANIYATCHAL MANDANTE VALAPPIL DEVI
            MUTHAPPA KSHETHRA COMMITTEE, THROUGH ITS
            CONVENER, K. C. NARAYANAN, KANIYATCHALIL,
            KANDAKKAI, P. O. MAYYIL, KANNUR DISTRICT, PIN -
            670 602.
    2       K. C. SHIVANANDAN
            AGED 45 YEARS
            S/O. NARAYANAN, RESIDING AT KANIYATCHAL HOUSE,
            KANDAKKAI, P. O. MAYYIL, KANNUR DISTRICT, PIN -
            670 602.
    3       P. P. KUNHIKANNAN
            AGED 65 YEARS
            S/O. KORAN, RESIDING AT KELOTH HOUSE,
            ERANHIKDAVU ROAD, PADINHAREPARAMBA, POST
            KANDAKKAI, MAYYIL, KANNUR DISTRICT, PIN - 670
            602.
    4       KANIYATCHAL MANDANTE VALAPPIL DEVI
            MUTHAPPAN TEMPLE, KANIYATCHALIL, KANDAKKAI, P.
            O. MAYYIL, KANNUR DISTRICT, PIN - 670 602.
    5       K. C. CHANDRASEKHARAN
            S/O. GOVINDAN, PRESIDENT OF KANIYYATTUCHAL SREE
 OP(C) NO. 434 OF 2020

                                    -2-


                MAHADEVI MUTHAPPAN MADAPPURA COMMITTEE,
                RESIDING AT K. C. HOUSE, KANDAKKAI P. O.,
                MAYYIL (VIA), KANNUR - 670 602.
     6          K. P. NARAYANAN
                S/O. KUNHI RAMAN, SECRETARY OF KANIYYATTUCHAL
                SREE MAHADEVI MUTHAPPAN MADAPPURA COMMITTEE,
                RESIDING AT SREYAS HOUSE, KANDAKKAI P. O.,
                MAYYIL, KANNUR, PIN - 670 602.
         THIS    OP   (CIVIL)   HAVING    COME   UP   FOR   ADMISSION   ON
20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 434 OF 2020

                               -3-



                          JUDGMENT

Dated this the 20th day of October, 2021

The petitioner is the plaintiff in O.S.No.370

of 2015 on the files of the Additional Munsiff's

Court, Kannur. The suit is filed for permanent

prohibitory injunction restraining the defendants

from trespassing into plaint schedule property,

committing waste therein and interfering with the

peaceful possession and enjoyment of the

plaintiff. The plaint schedule property consists

of three items. While describing item No.2 in the

plaint schedule, there occurred a mistake with

respect to the description of the boundaries.

This mistake was noted only after the trial had

commenced. Thereupon, the petitioner moved an

application seeking to correct the boundary

description of item No.2. The application is

rejected by Ext.P7 order. Hence, this original

petition.

OP(C) NO. 434 OF 2020

2. Learned Counsel for the petitioner

submitted that the mistake sought to be corrected

does not in any manner alter the nature of the

suit or the boundary description, inasmuch as the

correct description is available in the title

deed and the amendment is in accordance with the

description in the title deed. The further

contention is that the Advocate Commissioner has

also correctly identified the boundaries as given

in the title deed and unless the description is

permitted to be corrected, the petitioner will be

put to undue prejudice and loss. It is submitted

that other than filing a formal objection, the

defendants had not opposed the amendment

application. As regards the impact of the proviso

to Order VI Rule 17 CPC, learned Counsel

submitted that the mistake sought to be corrected

is only a human error, which was noticed only

during the course of trial and therefore, the

interdiction of Order VI Rule 17 CPC will not be OP(C) NO. 434 OF 2020

applicable.

3. Despite service of notice, there is no

appearance for the respondents.

4. Having heard the learned Counsel and

having perused the title deed, plaint schedule

and the commission report, I find that the

mistake sought to be corrected is only an error

that had occurred while drafting the plaint.

Being so, no prejudice will be caused to the

defendants by the amendment being allowed. Even

though the question of due diligence is a

pertinent aspect, the provisio to Order VI Rule

17 is not an absolute embargo against

entertaining an application for amendment made

after commencement of trial. Having found that

the amendment is innocuous and the result of a

human error, I am inclined to allow the original

petition.

In the result, the original petition is

allowed. Ext.P7 order is set aside and the OP(C) NO. 434 OF 2020

petitioner is permitted to carry out the

amendment as prayed for in Ext.P5 within a period

of one month from the date of receipt of a copy

of this judgment.

Sd/-

V.G.ARUN JUDGE Scl/20.10.21 OP(C) NO. 434 OF 2020

APPENDIX OF OP(C) 434/2020

PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF PLAINT AS OS 370/15. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN OS 370/2015.

EXHIBIT P3 TRUE COPY OF THE TITLE DEED NO.4827/2012 ALONG WITH PLAN.

EXHIBIT P4 TRUE COPY OF THE COMMISSIONER'S REPORT AND PLAN DATED 2.7.2019 IN OS 370/15. EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT WITH PETITION AS IA 260/2020 BEFORE ADDITIONAL MUNSIFF COURT, KANNUR. EXHIBIT P6 TRUE COPY OF THE COUNTER STATEMENT FILED IN IA 260/2020 IN OS 370/2015 BEFORE ADDITIONAL MUNSIFF COURT, KANNUR.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 29.1.2020 IN IA 260/2020 IN OS 370/2015 BEFORE ADDITIONAL MUNSIFF COURT, KANNUR.