Amendments to pleadings after evidence presentation can jeopardize established claims and proper proceedings.

J U D G M E N T

One Kamaludheen, the plaintiff in O.S.No.201/2013 on the file of Munsiff Court, Varkala, assails order in I.A.No.1/2021 dated 11.01.2022 passed by the learned Munsiff, Varkala. Sreedevi, the, sole defendant in the above Suit, is the respondent herein and the plaintiff in connected O.S.No.192/2013.

2. Heard both sides in detail.

3. I shall refer the parties in this original petition as 'Kamaludheen'

and 'Sreedevi' for convenience.

4. Short facts: In this matter, Kamaludheen, the plaintiff/petitioner filed Suit (O.S.No.201 of 2013) for declaring his right of easement by prescription over plaint 'C' schedule pathway. Further, prayer for mandatory injunction to remove the obstruction in the 'C' schedule way and consequent prohibitory injunction also were prayed for.

5. Sreedevi (the defendant in O.S.No.201 of 2013) filed written statement and resisted the contention of Kamaludheen. According to Sreedevi, a way has been set apart for Kamaludheen and thereafter compound wall was constructed. Another contention raised is that Kamaludheen is having right of access through other ways towards the plaint schedule property.

6. To be on the crux of the dispute, apart from local commission report obtained initially, a survey commission was deputed and the nature and lie of the scheduled items in O.S.No.201 of 2013 were located. Kamaludheen and Sreedevi not filed any objection to the commission report. It is interesting to note that the court below jointly tried O.S.No.201/2013 filed by Kamaludheen along with O.S.No.192/2013 filed by Sreedevi treating O.S.No.192/2013 as the leading case. During the trial, after examining the witness on the side of Sreedevi, DWs 1 to 5 were examined on the side of Kamaludheen.

7. After completion of the evidence, Kamaludheen filed I.A.No.1/2021 for amending the plaint. Sreedevi opposed the amendment on the ground that amendment sought for, after adducing evidence without due compliance of proviso to Order 6 Rule 17, cannot be allowed. The learned Munsiff considered the proposed amendment in detail. The learned Munsiff found that in the affidavit in support of the petition, in para.8 it was stated that Kamaludheen was aware of the error sought to be amended before commencement of trial and he had waited for rectifying the same during examination of the Commissioner and Surveyor.

8. As I have already pointed out, admittedly, no objection filed to the survey commission report filed in this case, marked as Ext.C3 series. The learned counsel for Kamaludheen would submit that on reading the evidence given by the Advocate Commissioner he had stated that compound wall was constructed on the southern boundary of plaint B schedule (in O.S.No.201/2013). Further the Commissioner given evidence that the boundary of the property was the same as reported in Ext.C2, while preparing Ext.C3. The learned counsel highlighted the evidence given by DW4, the Commissioner in page Nos.32, 33, 34 as well as the evidence given by the Surveyor in page No.37 of this paper book. Going by the evidence given by DW4 and DW5, they, in fact, supported the commission report and plan marked as Ext.C3 series. I have gone through the plan produced as Ext.P4. In Ext.P4, the plot `FGHNLF' is shown as 70 cm width pathway on the southern side of `B' schedule. During examination of the Surveyor DW5, he had given evidence that the above plot is `C' schedule located in the plan. He also given evidence that when `B' schedule was identified it was found that the way had been lying on the lower side on the extreme southern end of B schedule. Further in page No.37, the Surveyor given evidence that `C' schedule pathway was located on the basis of contention that `C' schedule was on the extreme southern side of `B' schedule. He also given evidence that it is not possible to show in the plan that southern side of `B