Partly allowed

Nalakath Majeed v. Ali

Kerala HC28 Sept 2021OP(C)/1952/2018

Case brief

AI extract

What is this about?

Under Article 227, the High Court allowed the petition challenging the dismissal of an amendment application in an easement suit. The Court set aside the order dismissing the amendment, directing its allowance, but upheld the order dismissing the application to remit a commissioner's report.

What did the court decide?

The order dismissing I.A No.784 (amendment) is set aside and application allowed within 15 days; the order dismissing I.A No.785 (remission of report) is confirmed.

Nalakath Majeed Vs Ali — Property and Title | Kerala HC (2021)

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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 A. BADHARUDEEN

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TUESDAY, THE 28^TH DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943

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OP(C) NO. 1952 OF 2018

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AGAINST THE ORDER IN I.A NOS.784 & 785 OF 2018 IN O.S NO.129 OF 2016 ON THE FILE OF MUNSIFF MAGISTRATE COURT, PONNANI, MALAPPURAM

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PETITIONERS :

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1 NALAKATH MAJEED, S/O. MOIDUNNI, AGED 50 YEARS, PATTATHEL, MARANCHERRY AMSOM AND DESOM, PONNANI TALUK, MALAPPURAM DISTRICT.

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2 PILAKKUTTATHIL NAFEESA,W/O. NALAKATH MAJEED, AGED 43 YEARS, PATTATHEL, MARANCHERRY AMSOM AND DESOM, PONNANI TALUK, MALAPPURAM DISTRICT.

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BY ADV SRI.RAJESH SIVARAMANKUTTY

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RESPONDENTS

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1 ALI, S/O. FATHIMA, AGED 35 YEARS, PATTATHEL, MARANCHERRY AMSOM AND DESOM, PONNANI TALUK, MALAPPURAM DISTRICT - 679581.

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2 MAIMOONA, D/O. FATHIMA, AGED 32 YEARS, PATTATHEL, MARANCHERRY AMSOM AND DESOM, PONNANI TALUK, MALAPPURAM DISTRICT - 679581.

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3 PATTATHEL RAVI @ UMMER FAROOK, S/O. VELAYUDHAN, AGED 34 YEARS, PATTATHEL, MARANCHERRY AMSOM AND DESOM, PONNANI TALUK, MALAPPURAM DISTRICT - 679581.

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4 PATTATHEL FATHIMA, W/O. MUHAMMEDUNNI, AGED 65 YEARS, PATTATHEL, MARANCHERRY AMSOM AND DESOM, PONNANI TALUK, MALAPPURAM DISTRICT - 679581.

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BY ADVS.SRI.P.G.SURESH & SMT.ASWATHY KRISHNAN

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(Civil) No.1952 of 2018 2

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A.BADHARUDEEN, J.

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O.P(Civil) No.1952 of 2018

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Dated this the 28^th day of September, 2021

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J U D G M E N T

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Two orders, rendered by the learned Munsiff, Ponnani in I.A Nos.784 & 785 of 2018 in O.S No.129 of 2016, are the subject matter in this Original Petition filed under Article 227 of the Constitution of India.

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The petitioners herein are the plaintiffs in the above suit

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and the respondents herein are the defendants therein.

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Short facts :

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Petitioners/plaintiffs filed a suit seeking the relief of permanent probihitory injunction restraining the respondents/defendants from obstructing use of plaint B schedule pathway where the plaintiffs asserted right of easement by prescription. Grievance of the petitioners is that an amendment application as I.A No.784 of 2018 was filed to amend the pleadings

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O.P(Civil) No.1952 of 2018 3

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without changing the nature of the suit. However, the learned Munsiff dismissed the same by holding the same as a belated application. Similarly, I.A No.785 of 2018 filed by the plaintiffs to remit the Commissioner's report and rough sketch filed by the Commissioner was also dismissed by the learned Munsiff. The above orders are under challenge in this petition filed under Section 227 of the Constitution of India.

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When the matter is taken up for hearing, Sri.Rajesh Sivaramankutty, learned counsel for the plaintiffs/petitioners argued that the learned Munsiff dismissed both the applications highlighting delay on the premise that both applications were filed when the case was listed for trial.

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Though he raised the challenge in the matter of order in I.A No.785 of 2018, whereby the learned Munsiff dismissed the petition to remit the Commissioner's report, after appraisal of the fact that even existence of alternative pathway shall not defeat the claim of the plaintiffs asserted by way of easement by prescription, the learned counsel not pressed the relief sought for in so far as dismissal of I.A No.785 of 2018 is concerned.

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There is no representation for the other side viz., defendants/respondents herein in this matter. In fact, it appears

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O.P(Civil) No.1952 of 2018 4

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that the challenge against the order in I.A No.785 of 2018 is of least consequences since the same is sought in order to get details of an alternative pathway as rightly argued by the learned counsel for the plaintiffs. In view of the matter, I am not inclined to interfere with the order dated 13-07-2018 in I.A No.785 of 2018, Ext.P6 order so that the said order is confirmed.

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Coming to dismissal of I.A No.784 of 2018 as per order dated 13-07-2018, it is zealously submitted by the learned counsel for the petitioners/plaintiffs that merely for the reason of delay, the relief otherwise would have been granted, was denied by the learned Munsiff. The narration in para 5 of the order in this regard has been highlighted by the learned counsel for the petitioners. When reading para 5, it appears that the main reason for dismissing I.A No.784 of 2018 petition for amendment was inordinate delay. Though the Munsiff stated that the amendment application was not filed before commencement of trial, the factual matrix of this case would go to show that trial not started at the time when the application was filed.

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It is worthwhile to note that in para No.1 of the copy of the plaint produced as Ext.P1, the plaintiffs/petitioners asserted the right of easement by prescription highlighting existence of the

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O.P(Civil) No.1952 of 2018 5

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pathway through the property of the defendants before purchase of the property by the petitioners, having a width of 6 feet and the length of 14 feet. However, the pleadings as regards the use of same by the predecessors and the details contemplated under Section 15 of the Easement Act were not fully incorporated in the plaint and the amendment application was filed to include those aspects. On perusal of the matters before this Court, it appears that the court below ought to have allowed the amendment application and facilitated the plaintiffs to adduce evidence to substantiate their contentions in support of the pleadings to assert the right of easement by prescription as claimed since the amendment sought for was not one, in any way changing the nature of the suit. Therefore, I am of the view that dismissal of I.A No.784 of 2018 by the learned Munsiff is erroneous and the same is akin to non-suiting the plaintiffs at the threshold and in view of the matter to order is liable to be set aside. Hence I do the same.

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In the result, this original petition is allowed in part.

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The challenge against Ext.P6 order stands repelled and the order is upheld. However, the challenge against Ext.P5 order is interfered and the said order stands set aside. Thereby I.A No.784 of 2018 dated 13-07-2018 stands allowed.

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O.P(Civil) No.1952 of 2018 6

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The plaintiffs are directed to carry out the amendment within 15 days from the date of receipt of copy of this judgment and facilitate trial of this matter as expeditiously as possible. Having noticed to the fact that this is a matter of 2016 and the learned Munsiff is directed to expedite the trial as early as possible at any rate within six months from the date of production of a copy of this judgment or receipt of the same by the court below and report compliance of the direction.

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Registry of this Court is directed to forward copy of this judgment within 7 days to the trial court for further necessary actions.

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A. BADHARUDEEN, JUDGE

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amk

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O.P(Civil) No.1952 of 2018 7

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PETITIONERS' EXHIBITS :

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.129/2016 FILED BY THE PETITIONERS AGAINST RESPONDENTS BEFORE THE MUNSIFF - MAGISTRATE COURT, PONNANI DATED 21.3.2016.

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EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.129/2016 FILED BY RESPONDENTS BEFORE MUNSIFF- MAGISTRATE COURT, PONNANI DATED 10.3.2017.

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EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT AND PETITION AS I.A.NO.784/2018 IN O.S.NO.129/2016 FILED BY THE PETITIONERS BEFORE THE MUNSIFF- MAGISTRATE COURT, PONNANI.

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EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT AND PETITION AS I.A.NO.785/2018 IN O.S.NO.129/2016 FILED BY THE PETITIONERS BEFORE THE MUNSIFF- MAGISTRATE COURT, PONNANI.

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EXHIBIT P5 TRUE COPY OF THE ORDER DATED 13.7.2018 IN I.A.NO.784/2018 IN O.S. NO.129/2016 PASSED BY THE MUNSIFF - MAGISTRATE COURT, PONNANI.

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EXHIBIT P6 TRUE COPY OF THE ORDER DATED 13.7.2018 IN I.A.NO.785/2018 IN O.S.NO.129/2016 PASSED BY THE MUNSIFF - MAGISTRATE COURT, PONNANI.

Nalakath Majeed v. Ali

Case brief

What is this about?

What did the court decide?

Nalakath Majeed v. Ali

Case brief

What is this about?

What did the court decide?

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