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PUTHENPURAYIL LEELAMMA MATHEW versus PUTHENPURAKKAL KUNHANCHAN & P.C.KURIAN

High Court of Kerala

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PUTHENPURAYIL LEELAMMA MATHEW v. PUTHENPURAKKAL KUNHANCHAN & P.C.KURIAN - WP(C) No. 30716 of 2006(F) [2007] RD-KL 1835 (23 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 30716 of 2006(F)

1. PUTHENPURAYIL LEELAMMA MATHEW,
... Petitioner

2. PUTHENPURAKKAL SAJEESH KOSI,

Vs

1. PUTHENPURAKKAL KUNHANCHAN & P.C.KURIAN,
... Respondent

2. ELIKUTTY,

3. KANNADIKKALVEETTIL SHEENASHIJU,

For Petitioner :SRI.P.P.JACOB

For Respondent :SRI.B.KRISHNAN

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :23/01/2007

O R D E R

M.SASIDHARAN NAMBIAR,J.

W.P.(C)NO.30716 OF 2006

DATED THIS THE 23rd DAY OF JANUARY, 2007



JUDGMENT

Petitioners are plaintiffs in O.S.64/02 on the file of Munsiff Court, Perambra. Petitioners filed I.A.680/06, an application under Rule 120 of Civil Rules of Practice to call for a document from Tahsildar, which was dismissed under Ext.P7 order. Petitioner also filed I.A.679/06, an application under Order VI Rule 17 of Code of Civil Procedure to amend the plaint. Under Ext.P8 order, the said petition was also dismissed. This petition is filed under Article 227 of Constitution of India challenging Exts.P7 and P8 orders.

2. Learned Counsel appearing for petitioners argued that petitioners produced the photocopy of the plan and its original was sought to be produced by filing I.A.680/06. Inspite of the order passed by the Court, Revenue authorities did not issue the certified copy and therefore learned Munsiff should have allowed the application.

3. Learned Counsel also argued that by filing the amendment application, petitioners sought to correct the survey number shown in the plaint and in the circumstances of the case, learned Munsiff should W.P.(c)30716/06 2 not have rejected the application and therefore Ext.P8 order is to be quashed.

4. Learned Counsel appearing for respondents pointed out that petitioners were proceeding through out on the basis that survey number shown in the plaint is the correct survey number and evidence was also let in and in spite of the report submitted by Commissioner, petitioners did not file an application to amend the plaint before examination of the parties and the application was filed only after closing of the evidence and in such circumstances, there is no reason to interfere with Ext.P8 order in exercise of the extraordinary jurisdiction of this Court. Learned Counsel also pointed out that for the very same relief sought for in I.A.680/06, petitioners earlier filed I.A.175/06 and it was dismissed and so petitioners are not entitled to file an identical petition and therefore there is no reason to interfere with Ext.P7 order also.

5. On hearing learned Counsel appearing for petitioners and respondents, I find that for the purpose of a just decision of the case, learned Munsiff should have permitted petitioners to amend the plaint as sought for in I.A.679/06. The question whether petitioners have a right over the property in the survey number sought to be amended, is a matter to be decided by learned Munsiff on the evidence. By permitting to amend the survey number, plaint schedule property is not being changed as neither the other W.P.(c)30716/06 3 descriptions of the property or its boundaries changed. In such circumstances, Ext.P8 order is quashed. I.A.679/06 filed by plaintiffs stands allowed. Respondents/defendants are entitled to file an additional written statement raising all available contentions including the right of petitioners to the property comprised in the amended survey number.

6. When I.A.175/06, which was filed for the very same relief was dismissed by the Court earlier, petitioners are not entitled to file another application seeking the very same relief. Therefore I find no reason to interfere with Ext.P7 order dismissing I.A. 680/06. Writ petition is disposed accordingly. Learned Munsiff is directed to dispose the suit expeditiously.

M.SASIDHARAN NAMBIAR,JUDGE

Acd W.P.(c)30716/06 4


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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