Allowed

Chacko v. State of Kerala and Others

Kerala HC27 Nov 2012OP(C)/3549/2012

Case brief

AI extract

What is this about?

The Kerala High Court allowed an application for amendment of plaint fixation of boundary dismissing impugned order that held amendment barred by laches. The court directed petitioner to pay costs to opposing respondents within three weeks. The original petitioner on which the order continued to remain in case the condition is not met by payer. Exemption under Section 80(2) CPC covers amended reli

What did the court decide?

Impugned order set aside; I.A. No. 377/2012 allowed subject to payment of Rs 10,000 costs to respondents' counsel within three weeks; otherwise original order remains intact.

Chacko Vs State of Kerala and Others — Specific Performance | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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TUESDAY, THE 27TH DAY OF NOVEMBER 2012/6TH AGRAHAYANA 1934

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OP(C).No. 3549 of 2012 (O)

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IA.NO.377/2012 IN OS.25/2009 of MUNSIFF COURT, KOLENCHERY

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PETITIONER(S):

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CHACKO S/O. CHACKO, AGED 62 THOLANKULAM HOUSE, PANCODE KARA IKKARANADU NORTHVILLAGE, KOLENCHERY ERNAKULAM DISTRICT.

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BY ADVS.SRI.MATHEWS K.PHILIP SMT.T.MANASY

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RESPONDENT(S):

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STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR,CIVIL STATION KAKKANADU,ERNAKULAM-682030.

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ASSISTANT EXECUTIVE ENGINEER,

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PVIP SUB DIVISION II,I RINGOL, PERUMBAVOOR-683548.

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TAHSILDAR,

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KUNANTHUNADU TALUK OFFICE, KUNANTHUNADU-683548.

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JOY,, AGED 49 YEARS S/O.CHANDY,CHOLATTU HOUSE,PANCODE KARA IKKARANADUNORTH VILLAGE,KOLENCHERY ERNAKULAM-670601.

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DANIEL,, AGED 58 YEARS S/O.JOSEPH,THENUMKAL HOUSE,PANCODE KARA IKKARANADUNORTH VILLAGE,KOLENCHERY ERNAKULAM-670601.

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THOMAS,

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S/O.CHACKO,THOLAMKULAM HIOUSE

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PANCODE KARA IKKARANADU NORTH VILLAGE,KOLENCHERY ERNAKALAM DISTRICT-670601.

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R4-6 BY ADV. SRI.JOBY JACOB PULICKEKUDY

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BY GOVERNMENT PLEADER SMT. LILLY K.T.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO. 3549/2012

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXT-P1	TRUE COPY OF THE PLAINT IN OS.25/2009 ON THE FILE OF MUNSIFF'S COURT,KOLENCHERY
EXT-P2	TRUE COPY OF THE WRITTEN STATEMENT FILED BY D1 & D2 D2 IN OS 25/2009 ON THE FILED OF MUNSIFF'S COURT,KOLENCHERY.
EXT-P3	TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE D3 IN OS 25/2009 ON THE FILE OF MUNSIFF'S COURT,KOLENCHERRY.
EXT-P4	TRUE COPY OF THE WRITTEN STATEMENT FILED BY D4 & D5 IN OS 25/2009 ON THE FILE OF MUNSIFF'S COURT,KOLENCHERRY
EXT-P5	TRUE COPY OF THE WRITTEN STATEMENT FILED BY D6 IN OS 25/2009 ON THE FILE OF MUNSIFF'S COURT,KOLENCHERRY
EXT-P6	TRUE COPY OF ADVOCATE COMMISSION REPORT WITH PLAN DATED 29/6/2012 IN OS.25/2009 ON THE FILE OF MUNSIFF'S COURT,KOLENCHERRY.
EXT-P7	TRUE COPY OF THE ADVOCATE COMMISSION REPORT WITH PLAN DATED 29.6.2012 IN OS.25/2009 ON THE FILE OF MUNSIFF'S COURT,KOLENCHERRY
EXT-P8	TRUE COPY OF THE IA.377/2012 IN OS.25/2009 ON THE FILE OF MUNSIFF'S COURT,KOLENCHERRY.
EXT-P9	TRUE COPY OF THE IA.378/2012 IN O.S.25/2009 ON THE FILE OF MUNSIFF'S COURT,KOLENCHERRY
EXT-P10	TRUE COPY OF THE ORDER IN O.P.(C)3324/2012
EXT-P11	TRUE COPY OF THE ORDER IN IA.377/2012 IN OS.25/2009 ON THE FILE OF THE MUNSIFF'S COURT,KOLENCHERRY.

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RESPONDENTS' EXHIBITS : NIL

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/TRUE COPY/

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P.A. TO JUDGE.

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V. CHITAMBARESH, J

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OP(C) NO. 3549 OF 2012

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Dated this the 27^th day of November, 2012

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JUDGMENT

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The suit is one for fixation of boundary of item Nos. 1 and 2 property of the plaint schedule and for consequential injunction. Defendants 1 to 3 in the suit are government officials and therefore the suit had to be preceded by a notice under Section 80 of the Code of Civil Procedure. But the plaintiff obtained leave under Section 80 (2) of the Code of Civil Procedure in view of the urgency of the situation and laid the suit. Subsequently an application for amendment of the plaint was filed seeking to correct the relief with regard to the fixation of boundary. The court below has by the order impugned dismissed the application for amendment primarily on the ground of laches.

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The petitioner/plaintiff contends that amendment of the nature sought is essential to adjudicate the real controversy in the suit. It is also pointed out that the application for amendment was filed before the commencement of trial in the suit. Respondents 4 to

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OP(C) No. 3549/2012

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6/defendants 4 to 6 opposed the application for amendment on two grounds. The first ground is that the amended relief seeks to fix the boundary within the property of the petitioner only and cannot be granted. The other ground raised is that the leave obtained under Section 80 (2) of the Code of Civil Procedure would not enure to the amended relief incorporated in the plaint.

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The question whether the relief obtained under Section 80 (2) of the Code of Civil Procedure would suffice for the amended relief also is a matter to be considered by the court below finally. That does not affect the power of the court to allow amendment of the nature sought especially when the character of the suit is not altered. The question whether the amended relief would lead to fixation of boundary within the property of the petitioner itself is also a matter to be decided at the time of trial. The defendants are undoubtedly entitled to file an additional written statement to the amended plaint.

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There is ofcourse some laches on the part of the petitioner in not taking steps earlier for amendment of the plaint. Such delay can be condoned by directing the petitioner to pay

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OP(C) No. 3549/2012

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costs to respondents 4 to 6 who are opposing the application. The impugned order is set aside and I.A. No. 377/2012 in O.S. No. 25/2009 on the file of the court of the Munsiff of Kolanchery is allowed. This is subject to the condition that the petitioner pays a sum of ` 10,000/- (Rupees Ten thousand only) as costs to the counsel for respondents 4 to 6 in this Original Petition within a period of three weeks. The order impugned will remain intact in case the costs as directed is not paid.

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The Original Petition is disposed of.

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V. CHITAMBARESH JUDGE

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ncd

Chacko v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

Chacko v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

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