IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 14^TH DAY OF JUNE 2024 / 24TH JYAISHTA, 1946 OP(C) NO. 1270 OF 2024 AGAINST THE ORDER/JUDGMENT DATED 18.05.2024 IN IA NO. 16 OF 2023 IN OS NO.679 OF 2020 OF PRINCIPAL MUNSIFF COURT, KOTTAYAM PETITIONER/RESPONDENT/DEFENDANT:

CHINNAMMA KURIAKOSE AGED 65 YEARS, W/O JOSEPH, ELAVUNKAL HOUSE, POOVAANI P.O., KOTTAYAM DISTRICT, PIN – 686577 BY ADV K.M.SATHYANATHA MENON RESPONDENT/PETITIONER/PLAINTIFF:

KUNJUMOL K N AGED 51 YEARS, W/O MOHANAN, VADAKKEPARAMBIL HOUSE, KARIMBANI P.O., KOTTAYAM DISTRICT,, PIN - 686564 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON

14.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T

Ext.P8 order allowing an application for amendment is under challenge in this original petition.

2. The petitioner is the defendant and the respondent is the plaintiff. The suit is one for declaration of prescriptive easement right, permanent prohibitory injunction and mandatory injunction. The plaintiff filed I.A.No.16/2023 to amend the plaint. The amendment sought for is basically to correct the survey number and boundaries of the plaint schedule property. The defendant opposed the application mainly on two grounds. (i) On an earlier occasion, a similar application was filed and it was dismissed. No appeal has been filed against the said order of dismissal and (ii) No reason has been stated for seeking an amendment, and the amendment, if allowed, would alter the nature and character of the suit. The trial court, after hearing both sides, allowed the amendment application as per Ext.P8. It is challenging the said order, this original petition has been filed.

3. I have heard Sri.K.M.Sathyanatha Menon, the learned counsel appearing for the petitioner.

4. It is true that, on earlier occasion I.A.No.13/2022 has been filed seeking the same amendment. However, that application was dismissed not on merit. That was dismissed for the reason that time was fixed by this Court to dispose of the case. Hence, the dismissal of the said application is not a bar to file a fresh application. In the affidavit filed in support of the application, it has been stated that, after re-survey, the survey number has been changed in respect of all the items of the plaint schedule properties. Hence, the plaintiff wanted to amend the survey number, incorporating the new survey number. So far as the boundaries of item No.1 property is concerned, it is stated that the previous owners have sold away the properties. Hence, the boundaries have been changed. So the plaintiff wanted to amend the boundaries of item No.1, accordingly. So far as the remaining items of properties are concerned, the plaintiff wanted to change the boundary, though the reason has not been stated in specific terms. The amendment sought for is only to correct the survey number and boundaries, which will not in anyway alter the nature or character of the suit. That apart, amendment has been filed prior to the commencement of the trial.

Hence, I am of the view that the trial court was justified in allowing the amendment. There is no illegality or impropriety in the impugned order. Accordingly, this original petition is dismissed.

Sd/-

DR. KAUSER EDAPPAGATH, JUDGE APA APPENDIX OF OP(C) 1270/2024 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S. NO.

679/2020 ON THE FILE OF THE MUNSIFF COURT, KOTTAYAM EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S. NO.679/2020 ON THE FILE OF THE MUNSIFF COURT, KOTTAYAM EXHIBIT P3 A TRUE COPY OF THE APPLICATION FOR AMENDMENT FILED BY THE RESPONDENT AS I.A. NO.13/2022 IN OS NO.679/2020 ON THE FILE OF THE MUNSIFF COURT, KOTTAYAM EXHIBIT P4 A TRUE COPY OF THE OBJECTION BY THE PETITIONER HEREIN TO EXT.P3 EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 19.03.2022 IN I.A. NO.13/2022 IN O.S. NO.679/2020 ON THE FILE OF THE MUNSIFF COURT, KOTTAYAM EXHIBIT P6 A TRUE COPY OF THE APPLICATION FILED BY THE RESPONDENT S