JUDGMENT

(Dated this the 25^th September 2024)

The defendant Nos. and 2 in O.S.No.636 of 2015 on the files of Munsiff Court, Ernakulam, along with 3 others, are the petitioners, and the 1st respondent was the plaintiff. The said O.S. was filed by the 1st respondent for a decree of permanent prohibitory injunction restraining the 1^st and 2^nd defendants, their men or agents from constructing a compound wall or making any manner of construction or any other act encroaching to any portion of the plaint B schedule road or to reduce its width or causing any interference or obstruction to the plaintiff’s uninterrupted or plaint B schedule road including vehicular access for ingress and egress of plaint A schedule property. 2. A written statement was filed by defendants Nos.1 and 2 denying the averments in the plaint on 22.6.2016. A Commission application was filed by the plaintiff along with the suit and the Commission has filed Ext.Ext.P3 report. After entering appearance, the defendants filed I.A.No.5585 of 2019 under Order 26 Rule 9 and 10 CPC for appointment of an Advocate Commissioner with the assistance of a Village Officer. While so, the plaintiff filed I.A. No.1 of 2021 to appoint an Advocate Commissioner to prepare a survey sketch of plaint B schedule road as reported by the Advocate Commissioner on the date of the suit with the assistance of the Taluk Surveyor or private surveyor. At this point in time, the defendants submitted that they are not pressing I.A.No.5585 of 2019, and it was dismissed as not pressed. The defendants filed a work memo in the application filed by the plaintiff as I.A. No.1 of 2021. The learned Munsiff, as per the order dated 5.2.2021, dismissed I.A.No.1 of 2021 and the work memo to note additional points. The defendants, thereafter, filed I.A. No.4 of 2021 an application under Order 6 Rule 17 CPC to amend the written statement and to incorporate a counter claim. The plaintiff filed an objection to the amendment application as Ext.P10. The learned Munsiff, after hearing both sides, passed Ext.P11 order dismissing the petition for amendment. The petitioners, who are the defendants, challenge Ext.P11 order in this Original Petition under Article 227 of the constitution of India.

3. Heard the counsel for the petitioners as well as the respondents.

4. The suit is filed by the plaintiff for a permanent prohibitory injunction restraining defendant Nos.1 and 2 from constructing a compound wall or making any construction encroaching into the property. In written statement, the defendants have taken up a contention that a compound wall existed on the southern side of the southern compound, which was demolished on 22.5.2015 by the plaintiff and her men. It is also contended that the pathway, which lies on the southern side of their property in an east-west direction, is of the character of a public road, and the corporation of Cochin concreted it. The controversy occurred regarding the width of the pathway on the immediate southern side of the defendants’s property.

5. In the ex-parte commission report and the rough sketch, it is seen that the width of the property on the southern side of the property varies from 2.50 meters, and further west, the same is 2.40 meters towards a scheduled property. In order to identify B schedule property with the help of a surveyor, the defendant filed I.A. No.5585 of 2019 to inspect and report the property of the defendants as per their sale deed and also the width of the pathway situated beyond the southern boundary of the property up to the northern boundary of Iqbal and Nandanan. In the affidavit in support of the petition, in paragraph No.4, it is specifically averred that the defendant is constrained to approach the court with the petition as the plaintiff did not take steps to measure and identify the pathway. It was also averred in the petition that if the plaintiff expresses willingness to apply for a survey commission, he will withdraw the said petition. The plaintiff t