Raziya vs Kunju Makkar
2024 Latest Caselaw 14067 Ker

Citation : 2024 Latest Caselaw 14067 Ker
Judgement Date : 28 May, 2024

Kerala High Court

Raziya vs Kunju Makkar on 28 May, 2024

Author: Kauser Edappagath

Bench: Kauser Edappagath

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
       THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946


                       OP(C) NO. 772 OF 2024
  AGAINST THE ORDER DATED 05.02.2024 IN I.A. 1/2023 IN OS
              NO.83 OF 2013 OF MUNSIFF COURT,ALUVA


PETITIONER/PETITIONER/PLAINTIFF:

            RAZIYA
            AGED 71 YEARS
            W/O LATE MUHAMMED BASHEER, PANACHIMOOTTIL HOUSE,
            THAIKKATTUKARA P.O., ALUVA EAST VILLAGE, ALUVA
            TALUK, ERNAKULAM., PIN - 683101
            BY ADVS.
            AKHEELA FARZANA
            V.K.SIDHIQUE
            SAJITHA SIDHIK


RESPONDENT/RESPONDENT/DEFENDANT :

            KUNJU MAKKAR
            AGED 67 YEARS
            S/O MUHAMMED, KANDAMANGALATH HOUSE, NEESA VILLA,
            WEST KADUNGALLOOR P.O., W.KADUNGALLOOR P.O.,
            W.KADUNGALLOOR KARA, MANAGING DIRECTOR, M/S
            ARAVIND HUMAN RESOURCES, ROYAL PLAZA, BRIDGE
            ROAD, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA
            TALUK., PIN - 683101
            BY ADV
            BABU S. NAIR


     THIS     OP   (CIVIL)    HAVING   COME   UP    FOR    ADMISSION   ON
28.05.2024,    THE    COURT    ON   THE   SAME     DAY    DELIVERED    THE
FOLLOWING:
                                  2
OP(C) No.772 of 2024




            Dated this the 28th day of May, 2024

                          JUDGMENT

Ext. P5 order dismissing an application for amendment

under Order 6 Rule 17 of the Code of Civil Procedure is

under challenge in this Original Petition.

2. The petitioner is the plaintiff and the respondent is

the defendant in O. S. No.83/2013 on the files of the Munsiff

Court, Aluva (for short 'the trial court'). The suit was one for

declaration that the plaintiff has got the prescriptive

easement right of way through the plaint C schedule

property for access to the plaint A schedule property. The

parties went on trial. After the evidence was closed, the

plaintiff filed an application as I. A. No.1/2023 to amend the

plaint to covert the suit for declaration of easement right by

way of grant. The trial court after hearing both sides,

dismissed I.A. No.1/2023 as per Ext.P5 order. It is

challenging the said order, the plaintiff has preferred this

Original Petition.

3. I have heard Adv. Akheela Farzana, the learned

counsel appearing for the petitioner and Sri. Babu S. Nair,

the learned counsel appearing for the respondent.

4. As stated already, the suit was originally filed for

declaration that the plaintiff has got prescriptive easement

right over plaint C schedule way for access to the plaint A

schedule property belonging to her. According to the

plaintiff, now she came to know that there is a registered

document No.415/1979 of SRO Aluva executed by the

predecessor of the defendant in favour of her mother

granting a right of way through C schedule property. It is in

these circumstances, amendment application has been filed.

The amendment application has been filed after the trial.

The plaintiff has simply stated that now only she came to

know about the registered document by which the grant was

made. However, that document relates to 1979. That apart,

the nature of easement claimed by the plaintiff now is totally

different from the nature of easement claimed by her in the

original suit. Therefore, the amendment if allowed would

alter the nature and character of the suit. Hence, I am of the

view that the trial court rightly dismissed the amendment

application.

5. The learned counsel for the petitioner submitted that

document No.415/1979 would clearly show that the

predecessor of the defendant has granted a right of way

through the C schedule property to the mother of the

plaintiff and hence the plaintiff is entitled to easement by

way of grant. The remedy open to the plaintiff is to

withdraw the suit, seeking liberty to file a fresh suit. If the

plaintiff files such an application, the same shall be

considered and disposed of by the trial court, in accordance

with law.

This Original Petition is dismissed with the above

directions.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE BR

APPENDIX OF OP(C) 772/2024

PETITIONER'S EXHIBITS Exhibit P1 A TRUE PHOTOCOPY OF THE PLAINT IN O.S.83/2013 DATED 08.03.2013 Exhibit P2 A TRUE PHOTOCOPY OF THE WRITTEN STATEMENT IN O.S.83/2013 FILED BY THE RESPONDENT DATED 30.10.2013 Exhibit P3 A TRUE PHOTOCOPY OF THE I.A. 1 /2023 IN O.S.83/2013 DATED 4.2.2023 Exhibit P4 A TRUE PHOTOCOPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A. 1 /2023 IN O.S. 83/2013 DATED 7.09.2023 Exhibit P5 A TRUE PHOTOCOPY OF THE ORDER DATED 05/2/2024 IN I.A. 1 /2023 DATED 5.2.2024 Exhibit P6 A TRUE PHOTOCOPY OF DOCUMENT NO: