Kerala High Court
OP(C)/4240/2012 of S.INDIRA AMMA Vs SECRETARY on 31 December 2012
COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934 OP(C).No. 4240 of 2012 (O) -------------------------- IA.NO.8030/2012 IN OS.2037/2009 of PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM PETITIONER(S):
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934
OP(C).No. 4240 of 2012 (O)
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IA.NO.8030/2012 IN OS.2037/2009 of PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM
PETITIONER(S):
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S.INDIRA AMMA, W/O.RADHAKRISHNAN NAIR, “SREE VISAKH” VIVEKANANDAPURAM, VATTIYURKAVU P.O., THIRUVANANTHAPURAM-695 013. BY ADVS.SRI.N.SUBRAMANIAM SRI.J.HARIKUMAR SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN
RESPONDENT(S):
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1. SECRETARY CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM -695 001.2. S.BINU WARD COUNCILOR, WARD NO.33, CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM -695 001
THIRUVANANTHAPURAM -695 001.
R1 BY ADV. SRI.N.NANDAKUMARA MENON (SENIOR ADVOCATE)R1 BY ADV. SRI.P.K.MANOJKUMAR
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 31-12-2012, THE COURT ONTHE SAME DAY DELIVERED THE FOLLOWING:
OP (C) NO.4240/2012
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT P1.TRUE COPY OF IA NO.8030/2012 IN OS NO.2037/2009 OF THE MUNSIFF COURT,THIRUVANANTHAPURAM.
EXHIBIT P2.TRUE COPY OF THE ORDER IN IA NO.8030/2012 IN OS NO.2037/2009 OF THEMUNSIFF COURT, THIRUVANANTHAPURAM.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
THOMAS P. JOSEPH, J.
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O.P.(C). No.4240 of 2012
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Dated this the 31[st] day of December, 2012.
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JUDGMENT
1[st] respondent appears through counsel. 2[nd] respondent is served.
2. The original petition is in challenge of Ext.P2, order dated07.11.2012 on I.A.No.8030 of 2012 in O.S.No.2037 of 2009 of the PrincipalMunsiff's Court, Thiruvananthapuram.
3. The petitioner/plaintiff sued the respondents/defendants for adeclaration of title over the plaint B schedule, recovery of possession, mandatoryand prohibitory injunction concerning the plaint A schedule, fixation of boundaryon the east of the plaint A schedule and other reliefs. After the trial commencedand after the Advocate Commissioner was examined, petitioner noticed a defectin the plaint schedule in that the boundary descriptions given therein was of itemNo.1 of A schedule of partition deed No.1437 of 1983 instead of boundarydescription of item No.2 of the said A schedule. Thereon, petitioner filedI.A.No.8030 of 2012 seeking amendment.
4. That application was opposed by the respondents.
5. The learned Munsiff by Ext.P2, order dismissed the applicationobserving that the petitioner was not vigilant in prosecuting the suit. Ext.P2,order is under challenge.
6. The learned counsel for the petitioner contended that in spite ofexercise of due diligence, the defect came to the notice of the petitioner and thecounsel only when the Advocate Commissioner was being examined andimmediately thereafter necessary remedial measure was taken. Learnedcounsel submits that since the mistake is bonafide, petitioner may be given anopportunity to amend the suit and prosecute further.
7. Learned counsel for the 1[st] respondent has supported theimpugned order. It is contended that even after the Advocate Commissionerfiled the report, no attempt was made to correct the mistake, if any.
8. In Eapen Antony v. Joseph (2009 (2) KLT 849) this Court hasheld that even in spite of due diligence, a party may not find out the defectand that the defect may come into the notice of the counsel or the party onlywhen the witnesses are examined. In the present case, instead of boundarydescription of item No.2 of A schedule of partition deed No.1437 of 1983, theboundary description given in the plaint is of item No.1 of the A schedule of thesaid partition deed. It is pointed out that the said mistake was noticed onlywhen the Advocate Commissioner was being examined.
OP(C) No.4240/2012
9. Having regard to the facts and circumstances of the case I aminclined to think that the mistake was bonafide. The dispute has to be resolvedin the present litigation rather than leaving the parties to initiate freshproceeding.
10. Having regard to the facts and circumstances of the case, I aminclined to allow the application for amendment.
Resultantly the Original Petition is allowed as under:
i.Ext.P2, order dated 07.11.2012 on I.A.No.8030 of 2012 inO.S.No.2037 of 2009 of the Principal Munsiff, Thiruvananthapuram is set aside.
ii. I.A.No.8030 of 2012 will stand allowed. Petitioner shallcarry out the amendment within 14 days from this day.
iii.The trial court shall give the respondents opportunity to fileadditional written statement if any and thereafter proceed with the suit asprovided under law and as circumstances warranted.
THOMAS P.JOSEPH, Judge.