Kerala High Court
Kaniyankady Dineshan vs Palliprath Raveendran on 27 March, 2024
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
CRP NO. 267 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 13.08.2021 IN OS NO.58
OF 2012 OF MUNSIFF COURT, THALASSERY
REVISION PETITIONER/S:
1 KANIYANKADY DINESHAN
AGED 63 YEARS
S/O. KANNAN, NANDANAM, ANJARAKANDY AMSOM, KAMETH
DESOM, KANNUR TALUK, KANNUR-670 612.
2 AJITHA DINESHAN
W/O. DINESHAN, NANDANAM, ANJARAKANDY AMSOM,
KAMETH DESOM, KANNUR TALUK, KANNUR-670 612.
BY ADVS.
M.P.ASHOK KUMAR
P.C.GOPINATH
BINDU SREEDHAR
ASIF N
RESPONDENT/S:
1 PALLIPRATH RAVEENDRAN
S/O. KUNHAPPU, PRASANTHI, ANJARAKANDY AMSOM,
KAMETH DESOM, KANNUR TALUK, KANNUR-670 612.
2 K.K.ANIL KUMAR
S/O. RAGHAVAN, ANUSHA, MAMBA P.O., KANNUR-670
611 REPRESENTED BY POWER OF ATTORNEY HOLDER,
K.K. SALIL KUMAR.
BY ADVS.
M.SASINDRAN
P.SASI
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
23.02.2024, THE COURT ON 27.03.2024 DELIVERED THE FOLLOWING:
CRP No.267 of 2021
-2-
ORDER
Dated this the 27th day of March, 2024
The revision petitioners are defendants 1 and
Munsiff's Court, Thalassery. The challenge in
this revision petition is against the order
allowing the application for amending the plaint.
The essential facts are as under;
The plaintiff and his wife are the owners in
possession of plaint A schedule property.
According to the plaintiff, access to the plaint
A schedule is through plaint B schedule road
constructed in the year 1992 and being used by
the residents of the locality for the past many
years. The plaintiff alleges that on 20.01.2012,
the defendants and their men trespassed into B
schedule road and tried to annex a portion on the
southern side of B schedule by staking laterite
stones and also prevented the plaintiff and
others from using plaint B schedule road. Even
though the attempt was thwarted by the timely
intervention of the plaintiff and others, the
defendants have declared that they will not
permit the residents of the locality to use the
road. Hence, the prayer for a permanent
prohibitory injunction restraining the
defendants, their men, agents and any person
claiming through or under them from annexing
portion of the plaint B schedule road to the
property of the defendants, preventing the
plaintiff from using plaint B schedule road for
ingress and egress to plaint A schedule property
and committing waste in the plaint B schedule
road.
2. The defendants filed written statement
refuting the averments. Much later, the suit was
listed for trial on 06.08.2021. On that day, the
plaintiff preferred an interlocutory application
(IA No.5 of 2021) seeking permission to amend the
plaint. The amendment is sought on the ground
that certain typing errors had occurred while
preparing the plaint. As a result, the number of
years for which B schedule road has been in
existence is typed as 19 instead of 20. The
amendment is essential since the plaintiff is
claiming prescriptive easement right over the
plaint B schedule road, contending that he was
using the road, openly, as of right and without
interruption, for more than 20 years.
3. The defendants filed objection to the
application stating that the plaint was drafted 9
years back and the suit was listed many times and
was removed from the list at the instance of the
plaintiff. The plaintiff waited all the while
and came up with the frivolous amendment
application, after the suit was listed for trial
finally. It was also contended that the
amendment, if allowed, will change the character
and nature of the suit since the attempt is to
put forward the new claim of easement by
prescription.
4. The trial court allowed the amendment
application, holding that the suit is one for
injunction based on plaintiff's claim for right
of easement of prescription and the plaintiff had
made other necessary pleadings with respect to
the right of easement. The court therefore held
that the number of years shown as 19 can be
treated as a typographical error and the trial of
the suit having not commenced, the application
for amendment can be allowed on terms.
5. I heard learned Counsel for the revision
petitioners and the first respondent.
6. Learned Counsel for the revision
petitioners contended that in the plaint, it is
clearly stated that B schedule road has been in
existence and is being openly used by the
plaintiff for more than 19 years. Therefore, the
averment in the application that the number of
years was mistakenly shown as 19 and should
therefore be permitted to be corrected as 20, is
false. It is contended that the attempt is to put
forth a claim of easement by prescription, which
cannot be permitted after 9 years of filing of
the suit, that too, after the suit is listed for
trial. To buttress the contention, reliance is
placed on the decisions of the Apex Court in
Revajeetu Builders and Developers v.
Narayanaswamy and Sons and Others [(2009) 10 SCC
84] and LIC v Sanjeev Builders (P) Ltd and
Another [2022 SCC OnLine SC 1128].
7. It is contended that the trial of the
suit had commenced with the listing of the suit
for trial and hence, the proviso to Order VI Rule
17 of the Code of Civil procedure is attracted.
Being so, the plaintiff should prove that, in
spite of due diligence, he could not raise the
matter before the commencement of trial. No such
reason is stated in the application for
amendment and hence, the same ought to have been
dismissed. Finally, it is contended that, in
order to claim the right to prescription under
Section 15 of the Easements Act, 1882, there
should be specific pleadings in the plaint. As
the plaint does not contain any pleading to
support the claim of prescriptive easement,
application for amendment ought to have been
rejected for that reason also.
8. In reply, learned Counsel for the
respondent contended that no prejudice is being
caused to the defendants by the amendment. In the
plaint, it is already averred that plaint B
schedule road has been in existence and is being
used by the plaintiff and others for more than 19
years. By the amendment, the plaintiff is only
bringing clarity to the averment already made. It
is argued that the submission of the revision
petitioners that the trial has commenced is
wrong. In any case, the application for amendment
was filed before the first witness had entered
the box. In similar circumstances, the Apex Court
in Mohinder Kumar Mehra v. Roop Rani Mehra and
Others [(2018) 2 SCC 132] has interfered with an
order rejecting the application for amendment.
9. In order to answer the issue involved,
it is essential to note the averments which is
sought to be corrected. That portion of the
plaint reads as under;
'The plaint B schedule road is in existence
for more than 19 years. The plaintiff and public
are enjoying plaint B Schedule as a motorable
road openly as of right without any interruption
for the last more than 19 years as a public road
to reach Vandikarantavida- Panerichal Panchayat
road also to Kannur-Anjarakkandy main road.'
10. By the amendment, the plaintiff wants
the number of years in the above extracted
portion corrected as 20, on the premise that he
is claiming right of easement by prescription
over plaint B schedule road. The pertinent
question therefore is whether the amendment would
change the nature of the suit. In this context,
it is essential to note that the prayer in the
plaint is for a permanent prohibitory injunction
restraining the defendants, their men, agents and
any person claiming through or under them from
annexing the southern portion of plaint B
schedule road, preventing the plaintiff and
others from using the road and committing waste
on the road. For the plaintiff claiming
easementary right, the plaint should contain
specific pleadings, including an admission of the
title of the servient owner and enjoyment of
right of the easement for twenty years without
interruption. The plaint in the instant case does
not contain such necessary ingredients or even a
prayer for declaration of right of easement by
prescription over plaint B schedule road. The
plaintiff is also not seeking to amend the plaint
by incorporating the prayer for declaration of
right of easement by prescription. As held by the
Apex Court in Revajeetu Builders and Developers
(supra), 'the basic test which must govern
grant/refusal of amendment is whether such
amendment is necessary for determination of real
question in controversy or for proper and
effective adjudication of the case. The court
must also consider the potentiality of the
prejudice or injustice which is likely to be
caused to the other side by the amendment'. The
earlier discussion leads me to the definite
conclusion that the amendment is not necessary
for determination of the real question in
controversy, which is the entitlement of the
plaintiff for a permanent prohibitory injunction.
Moreover, amendment of the plaint after 9 years,
that too when the suit is listed for trial will
definitely cause prejudice to the respondents and
the same cannot be compensated adequately in
terms of money. The other contention is that,
even the unamended plaint contains an averment
regarding the existence of plaint B schedule road
for more than 19 years and hence, no prejudice
will be caused by the number of years being
corrected as 20. In my opinion, the plaintiff
having already stated that plaint B schedule road
has been in existence for more than 19 years, he
can very well prove the fact by letting in
evidence, instead of amending the pleadings.
For the aforementioned reasons, the civil
revision petition is allowed and the impugned
order is set aside. The court below shall
commence the trial forthwith and take earnest
efforts to dispose of the suit within four
months.
Sd/-
V.G.ARUN
JUDGE
Scl/
