Amendments to plaints can be allowed even if they may appear time-barred, provided no injustice is done and the court safeguards the interests of the parties.

JUDGMENT

Aggrieved by Ext.P8 order passed in IA No.6107/2018 and Ext.P11 order passed in RP No.36/2022 in OS No.342/2015 by the Court of the IInd Additional Munsiff, Ernakulam, the defendant in the suit has filed the original petition. The respondent is the plaintiff.

2. The background facts, leading to the impugned orders, relevant for the determination of the original petition are:

(i) The respondent has instituted Ext.P1 plaint against the petitioner for a decree of prohibitory injunction. The suit is resisted by the petitioner through Ext.P2 written statement.

(ii) At the instance of the respondent, an Advocate Commissioner has filed Ext.P3 report on 28.05.2015. The petitioner has filed Ext.P4 objection to the report.

(iii) Long thereafter, on 05.09.2018 (that is almost three years and six months after the filing of Ext.P3 report), the respondent filed I.A.No.6107/2018 (Ext.P5) seeking leave to amend the plaint, to incorporate an additional relief for a decree of mandatory injunction to remove the structures seen in plaint 'B' schedule property. The application was opposed by the petitioner through Ext.P6 counter affidavit.

(iv) Without hearing both sides and overlooking the contentions in Ext.P6 counter affidavit, the court below allowed Ext.P5 application. Immediately, the petitioner filed IA No.1/2020, to review the order that was passed, which was allowed by Ext.P7 order.

(v) Yet, the court below, by the impugned Ext.P8 order, has allowed Ext.P5 application.

(vi) The petitioner filed RP No.36/2022 to review Ext.P8 order. The application was opposed by the respondent through Ext.P10 counter affidavit.

(vii) The court below, by the impugned Ext.P11 order has partly allowed Ext.P9 review petition.

(viii) Exts.P8 and P11 orders are manifestly wrong and erroneous. Hence, the original petition.

3. Heard; Sri.M.P.Ramnath, the learned Counsel appearing for the petitioner and Sri.A.T.Anilkumar, the learned Counsel appearing for the respondent.

4. The question is, whether there is any illegality in Exts.P8 and P11 orders.

5. Ext.P1 plaint was instituted on 06.03.2015 for a permanent prohibitory injunction, to restrain the petitioner and his men from trespassing into plaint 'A'

and 'B' schedule properties.

6. The respondent's case in Ext.P1 plaint is that he had purchased 250/10,000 undivided share in 8.253 cents of land in Poonithura Village with the apartment bearing No.29/1348-A1A of Kochi Corporation and a covered car parking by way of a registered sale deed No.2261/03 of the Maradu SRO. The building complex consists of a basement floor, ground floor and four other floors. The basement floor has seven car parking slots. As per respondent's knowledge, the petitioner has purchased six of the seven parking spaces. The petitioner is conducting two mobile phone shops on the ground floor and first floor of the building complex. The petitioner, with an intention to take over the building complex and its management, is indulging in foul play. On 03.03.2015, the respondent received information that the petitioner in negation of the respondent's civil rights in plaint 'A' and 'B' schedule properties was attempting to enclose the plaint 'B' schedule property with his car parking spaces so as to get more space in the basement. With the above ulterior motive, the petitioner fitted rolling shutters on the basement floor to restrict the entry of others, for which the petitioner has no right.

7. The petitioner has denied the allegations in the plaint through Ext.P2 written statement.

8. At the instance of the respondent, Ext.P3 commission report was filed.

9. In Ext.P3 report, the Advocate Commissioner has reported that he has seen a mobile shop functioning on the southern side of the basement floor, but could not find any separation between the shop-

room and car parking area.

10. On 05.09.2018, the respondent filed Ext.P5 application seeking leave to amend the plaint and to incorporate the following reliefs:

“1) In para no.4, after the 3rd sentence following