Kerala High Court
Leela Amma vs Sheeja on 14 June, 2022
OP(C) NO. 3624 OF 2017
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
OP(C) NO. 3624 OF 2017
AGAINST THE ORDER/JUDGMENT IN OS 510/2008 OF MUNSIFF
COURT,ATTINGAL
PETITIONER/S:
LEELA AMMA
AGED 62 YEARS
AGED 62, D/O. PARVATHY AMMA,RESIDING AT DEEPA
SADANAM, NELLIDAPPARA KATTINPURAM, PULIMATH
VILLAGE, THIRUVANANTHAPURAM DISTRICT.
BY ADV SRI.M.DINESH
RESPONDENT/S:
1 SHEEJA
AGED 34 YEARS
AGED 34, W/O. SUDHAKARAN NAIR, RESIDING AT SHEEJA
BHAVAN, NELLIDAPPARA KATTINPURAM, PULIMATH
VILLAGE, THIRUVANANTHAPURAM DISTRICT-695612.
2 SUDHAKARAN NAIR
AGED 40 YEARS
AGED 40, S/O. NEELAKANTAN PILLAI,RESIDING AT
SHEEJA BHAVAN, NELLIDAPPARA KATTINPURAM, PULIMATH
VILLAGE, THIRUVANANTHAPURAM DISTRICT-695612.
3 LEELA AMMA
AGED 42 YEARS
AGED 42, D/O. NEELAKANTAN,RESIDING AT ANEESH
BHAVAN,NELLIDAPPARA KATTINPURAM, PULIMATH VILLAGE,
THIRUVANANTHAPURAM DISTRICT-695612.
BY ADVS.
OP(C) NO. 3624 OF 2017
2
SRI.LIJU. M.P
M P Liju (B/O)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 3624 OF 2017
3
JUDGMENT
The original petition is filed to set aside the order in
I.A.No.2490/2017 in O.S.No.510/2008 on the file of the
Court of the Munsiff, Attingal.
2. The petitioner, who is the plaintiff in the above
suit, has filed the same against the respondents, inter
alia, seeking, a decree to declare that she has an
easement right over the plaint scheduled property.
Subsequent to the filing of the suit, the petitioner had
filed Ext.P2 application seeking leave to amend the
plaint. The respondents 2 and 3 had filed a written
statement refuting the allegations in the plaint. They
contended that the petitioner has another pathway
starting from the eastern side of the thodu varambu and
passing through the southern side, which turns to the
west end on the road. Pursuant to the order of the Trial
Court, an Advocate Commissioner was appointed and
OP(C) NO. 3624 OF 2017
Ext.P4 report was filed. The petitioner filed Ext.P5
objection to the report and contended that the pathway
is in existence for 50 years. Thereafter, another
Commissioner was appointed, who has filed Ext.P6
report. The petitioner objected to the said report also, by
filing Ext.P7 objection. Then, the petitioner filed Ext.P8
application, seeking leave to amend the 3 rd paragraph of
the 4th line of the plaint to bring on record that, instead
of the direction 'southern', the direction is typed by
mistake as 'northern'. Hence, the amendment may be
allowed. The application was opposed by the
respondents, by filing Ext.P9 objection. The Court below,
after considering Exts.P8 and P9, has dismissed Ext.P8
application by Ext.P10 order. Ext.P10 is erroneous.
Hence, the original petition.
3. The 1st respondent has filed a counter affidavit,
inter alia, contending that it is after the commencement
OP(C) NO. 3624 OF 2017
of the trial that the petitioner has filed Ext.P8. The
petitioner has categorically deposed in her cross
examination, while being examined as PW1, that there is
no mistake as described in the plaint. More over, on an
earlier occasion, she has filed Ext.R1(a) application
seeking to delete the 1st line of paragraph 3 of the plaint
with the words 'western' instead of 'southern'. The said
application was allowed and the amendment was
permitted. Now, after her cross examination, the
petitioner is trying to bring in a new case and get over
her contradiction. The court below has rightly by
Ext.P10 order found that the amendment is
impermissible. Hence, the original petition may be
dismissed.
4. Heard; Sri.Dinesh M., the learned counsel
appearing for the petitioner and Sri.Liju M.P., the
learned counsel appearing for the respondents.
OP(C) NO. 3624 OF 2017
5. It is undisputed that the trial in the suit has
commenced. It is also evident from Ext.R1(a) that the
petitioner had on an earlier occasion sought leave to
amend the 1st line of paragraph 3, by inserting the word
'western' instead of 'southern'. Now the petitioner wants
to insert the word 'northern' instead of 'southern'. On
going through the cross examination of PW1, it shows
that the petitioner has stuck to the pleading in the
amended plaint. Therefore, I do not find any reason to
allow the amendment, particularly since it is hit by the
proviso to Rule 17 Order VI of the Code of Civil
Procedure. The suit itself is of the year 2008. It is more
than 15 years since the same is pending consideration. I
do not find any ground to exercise the supervisory
powers of this Court under Article 227 of the
Constitution of India and unsettle Ext.P10 order.
However, considering the fact that the suit is of the year
2008, I am of the view that the suit can be directed to be
OP(C) NO. 3624 OF 2017
expeditiously disposed of.
In the result, the original petition is dismissed,
confirming Ext.P10 order. Nevertheless, since the suit is
of the year 2008, I direct the Court of the Munsiff,
Attingal to make every endevour to dispose of the suit as
expeditiously as possible, in accordance with law.
Sd/-
C.S.DIAS, JUDGE
rkc/14.06.22
OP(C) NO. 3624 OF 2017
APPENDIX OF OP(C) 3624/2017
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN
O.S.NO.510/2008 ON THE FILE OF MUNSIFF'S
COURT, ATTINGAL DATED 18.11.2008.
EXHIBIT P2 TRUE COPY OF THE AMENDED PLAINT IN
O.S.NO.510/2008 DATED 18.11.2008.
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT OF
1ST AND 2ND RESPONDENT IN O.S.
NO.510/2008.
EXHIBIT P4 TRUE COPY OF THE COMMISSIONER'S REPORT
DATED 18.12.2008 IN O.S.NO.510/2008.
EXHIBIT P5 TRUE COPY OF THE OBJECTION FILED BY THIS
PETITIONER/PLAINTIFF TO EXHIBIT P4 DATED
22.3.2010.
EXHIBIT P6 TRUE COPY OF THE COMMISSIONER'S REPORT
DATED 26.8.2013 IN O.S. NO.353/2013.
EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER TO EXHIBIT P6 DATED
18.2.2016.
EXHIBIT P8 TRUE COPY OF THE I.A.NO.2490/2017 IN
O.S.NO.510/2018 DATED 18.11.2017.
EXHIBIT P9 TRUE COPY OF THE OBJECTION IN
I.A.NO.2490/2017 FILED BY THE 1ST
RESPONDENT DATED 6.11.2017.
EXHIBIT P10 TRUE COPY OF THE ORDER IN I.A.
NO.2490/2017 IN O.S.NO.510/2008.
