The Court has the power to treat a suit as instituted against a new defendant from the original date if the omission was due to a bona fide mistake, and the occupier is liable for harm to trespassers if deliberate acts or reckless disregard cause harm.

Defendants 4 and 5 in O.S. No. 298 of 1978 on the file of the Court of Subordinate Judge, Kottayam, are the appellant. The suit is for damages.

2. 5th defendant was conducting a photo studio at Changanacherry by name "Ravi Studio". There is an open compound belonging to the 1st defendant, behind the studio. Defendants 2 to 4 were employees in the studio. According to the plaintiff, defendants 2 to 5 with the concurrence and knowledge of the 1st defendant planted a galvanised iron wire net just behind the studio without giving any warning that the wire net was alive. One Devassia who is the husband of the 1st plaintiff and father of plaintiffs 2 to 6 and a head-load worker in the Changanacherry market, happened to cross the open comound on his way to the market at about 7.15 a.m. on 8-3-1977, and came in contact with the wire net. He was entrapped by the wire and died at the spot by electrocution. Devasaya was only 37 years old when he died and he was having good physique and earning a daily income of Rs. 40/ - to Rs. 50/ -. Plaintiffs were completely depending upon his income for their livelihood and therefore the plaintiffs are entitled to get damages of Rs. 1,00,000/- from the defendants, but they limited their claim to Rs. 50,000/-. Despite notice, the defendants did not care to settle the claim of the plaintiffs and hence plaintiffs filed the suit for realisation of damages to the tune of Rs. 50,000 / - with 6% interest and costs.

3. In the written statement filed by the 1st defendant he alleged that he is not the owner of the compound in question and pleaded ignorance as to the setting up of the wire net and the making of it alive by electric connection.

4. Defendants 2 to 4 filed a joint written statement denying the alleged setting up of the wire net and putting the plaintiffs to proof of the cause and time of death of Devassya. According to them, Devassya might have trespassed the compound and they owed no duty to any trespassers or burglars and they have not committed any actionable wrong and they are not liable to pay damages.

5. The 5th defendant filed a separate written statement admitting that he is the licensee and manager of Ravi Studio and that defendants 2 to 4

are his employees in the studio. He also admitted that the compound behind the studio belonged to the 1st defendant, but he contended that it was enclosed. He also denied the alleged cause and time of death of Devasya and the setting up of the wire net. According to him Devassya was only a trespasser in the compound and his death might have taken place at some time during the night and due to other reason. He also denied his liability to pay any damages and contended that the suit is barred by limitation. Quantum of damages claimed was also disputed by him.

6. On a consideration of the evidence in the case, the Court below found that the plaintiff has not succeeded in establishing that the 1st defendant is the owner of the compound. However, the Court below found that the 5th defendant as the owner of the studio from where the electric connection was provided and defendants 2 to 4 are the employees of the 5th defendant and therefore they were liable to pay damages to the plaintiff.

7. In this appeal, learned counsel for the appellants has challenged the judgment of the Court below. Learned counsel for the appellants submitted that the 5th defendant was impleaded only on 17-1-1980. The incident occurred on 8-3-1977 and the suit was filed on 15-3-1978. In the original plaint it was stated that the 2nd defendant was the licensee and owner of Ravi Studio. But defendants 2 to 4 denied the said statement. Thereupon, on 8-11-1979 the plaintiff filed I.A. No. 2996 of 1979 for amendment of the plaint in accordance with the following particulars :

"1. In the name and address given for defendants in the description of 2nd defendant 'owner' may be deleted.

2. The following person may be added as additional defendant No. 5:

"Additional Defendant No.15 Vijayan P