First appellate court held that the amendment prayer did not change the nature of the suit and allowed the amendment based on right of way and remand, so the appeals are dismissed in limine without going into merits.
The appeal filed against the first appellate court order is dismissed in limine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 2ND DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943
FAO (RO) NO. 5 OF 2021
AGAINST THE JUDGMENT DATED 29.02.2020 IN AS 61/2018 OF SUB
COURT,KOTTARAKKARA, KOLLAM
AGAINST THE JUDGMENT DATED 24.09.2018 IN O.S. NO.18/2010 OF
MUNSIFF COURT, KOTTARAKKARA.
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 R.MOHANAN NAIR, AGED 58 YEARS S/O. RAMAKRISHNA PILLAI, MOHANA VILASOM, ERATHUKULAKKADA MURI, KALAYAPURAM VILLAGE, KOTTARAKKARA THALUK, 691 560.
2 SREEDEVI,AGED 55 YEARS, W/O. MOHANAN NAIR, MOHANA VILASOM, ERATHUKULAKKADA MURI, KALAYAPURAM VILLAGE, KOTTARAKKARA THALUK, 691 560.
BY ADVS. S.SAJU SRI.A.V.SAJAN SMT.NEELANJANA NAIR SMT.POOJA SEBASTIAN
RESPONDENTS/APPELLANTS/PLAINTIFFS
1 SUDHAKARAN PILLAI, S/O. KUNJANPILLAI, SREE BHAVAN, ERATHUKULAKKADA MURI, KALAYAPURAM VILLAGE, KOTTARAKKARA THALUK 691 560.
2 UMA. S. PILLAI., W/O. SUDHAKARAN PILLAI, ERATHUKULAKKADA MURI, KALAYAPURAM VILLAGE, KOTTARAKKARA THALUK 691 560.
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 02.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Aggrieved by the judgment of remand of the first appellate court, the appellants came up. The Original Suit is for declaration of easement right and for injunction. The trial court dismissed the suit, against which an appeal was preferred before the first appellate court in A.S. No.61/2018, wherein the appellate court, based on the amendment application and also on an application for permitting him to withdraw the suit, remanded the matter to the trial court for fresh consideration after allowing the amendment application and by rejecting the application for withdrawal of the suit, against which the defendants came up, on the reason that several commissions were issued and the plaint was subjected to amendment on several times and the present application is intended to further drag the matter.
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partition deed No.3295 of 1955 or partition deed No.3779 of 1972, it would certainly come under purview of an easement by grant which was also raised by the plaintiffs. Hence the amendment was allowed by the first appellate court and the matter was remanded back to the trial court for adjudicating all these issues afresh by carrying out the amendment. The amendment sought will not, in any way, cause any prejudice to the parties, especially, when it is related to a right of way claimed by way of easement. Further, it will not alter the nature and character of the original suit. As such, it appears that there is no reason for admitting this appeal. Hence the appeal is dismissed in-limine .
Sd/P.SOMARAJAN
JUDGE
ajt
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APPENDIX OF FAO (RO) 5/2021
PETITIONER ANNEXURE
ANNEXURE A1 TRUE COPY OF THE JUDGMENT PASSED BY MUNSIFF COURT, KOTTARAKKARA IN O.S. NO. 18/2010 DATED 24.09.2018. ANNEXURE A2 TRUE COPY OF IA NO. 1/2020 IN AS NO. 61/2018 FILED BEFORE HONBLE SUB COURT AT KOTTARAKKARA DATED 18.02.2020. ANNEXURE A3 TRUE COPY OF IA NO. 2/2020 IN AS 61/2018 PASSED BY HONBLE SUB COURT AT KOTTARAKKARA DATED 28.02.2020. ANNEXURE A4 CERTIFIED COPY OF JUDGMENT PASSED BY HONBLE SUB COURT AT KOTTARAKKRA IN AS 61/2018 DATED 29.02.2020. ANNEXURE A5 TRUE COPY OF THE SURGICAL PATHOLOGY REPROT OF THE 1ST APPELLANT ISSUED BY RCC, THIRUVANANTHAPURAM DATED 28.01.2020.
2 issues framed by the court
Whether the amendment prayed for alters the nature and character of the original suit for declaration of easement right and injunction.
Whether the merit of the dispute requires examination of the original scheme of title/position of the parties or only an adjudication as between the parties in respect of the causes of action.
R. MOHANAN NAIR AND ANR.
SUDHAKARAN PILLAI AND ORS.
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
